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Full text of "International law situations with solutions and notes, 1929"

NAVAL WAR COLLEGE 



International Law 
Situations 

WITH SOLUTIONS AND NOTES 



1929 



^ 



UNITED STATES 

GOVERNMENT PRINTING OFFICE 

WASHINGTON: 1931 



For'sale by'the Superintendent of Documents, Washington, D. C. - - - Price 75|'cents 



PREFACE 



The discussions upon international law were, as in 
recent years, conducted under the auspices of the Naval 
War College authorities by George Grafton Wilson, 
LL. D., professor of international law in Harvard Uni- 
versity, who also drew up the notes which are published 
in the present volume. The discussion aimed to consider 
the situations from the point of view of the belligerent 
on the offensive, the belligerent on the defensive, and 
the neutral. 

Criticisms of the material presented and suggestions 
as to topics and situations that should be discussed will 
be welcomed by the Naval War College. 

Harris Laning, 
Rear Admiral, U. iS. Navy, 
President Naval War College. 
June 20, 1930. 

in 



CONTENTS 



Page 

Situation I. — Neutrality and vessels 1 

Solution (a) (6) (c) 2 

Notes 3 

General 3 

(a) Use of radio 3 

Sojourn in neutral port 3 

General regulation of radio 4 

United States radio order, August 5, 1914 5 

Action of other states 6 

Dismantling radio apparatus '_' _ 7 

Radio in Colombia 8 

Secretary of State to chairman Senate Com- 
mittee on Foreign Relations 10 

Commission of Jurists, 1923 10 

Use of radio 11 

Solution (a) 12 

(6) Strengthening decks, structural changes 12 

Fitting out by neutral 12 

Departure of vessel 13 

Neutrality proclamation, 1914 13 

Memorandum of September 19, 1914 L 13 

Note to Germany, 1914 14 

United States law, 1917 ___ 15 

General provisions 16 

Armed merchant vessels •__ 17 

Article XIV 19 

Neutral obligation 20 

Solution (6) 21 

(c) Passage Panama Canal, aircraft over Panama- 21 

Report of Commission of Jurists, 1923 21 

Treaties on Panama Canal 22 

Neutrality proclamation, November 13, 1914_ 23 

Gulf of Fonseca, 1917 24 

Aerial navigation convention, 1919 25 

Panama cities, 1914 27 

Solution (c) 27 

v 



VI CONTENTS 

Page 

Situation II. — Status of islands in Pacific Ocean 28 

Conclusion 28 

Notes 28 

General 28 

Early idea of mandates 29 

Later ideas of mandates 29 

Forms of control of independent areas 29 

Brussels act, 1890 31 

American attitude 31 

Negotiations on conquests, 1917 33 

World War and German overseas possessions 33 

Article 22 , 34 

Discussions in 1918 35 

President Wilson's ' ' Fourteen Points " 37 

Mandatory system „ 37 

Allocation of mandates 39 

Title to German overseas possessions 39 

Opinion of Mr. Balfour, 1920 39 

Statement of British Prime Minister, 1920 40 

Mandated areas 42 

German overseas territory under peace treaty 42 

Status of mandates 45 

Neutralization 47 

Terms of mandates 48 

Period of mandate 54 

Source of authority 55 

General observations 56 

General mandate plan 57 

Japanese attitude 58 

Opinion of Keith 58 

Central Africa 60 

Status of mandates 61 

Discussion in mandates commission 63 

The case of Jacobus Christian v. Rex 65 

Attitude of mandates commission 67 

United States and mandates 67 

The North Pacific islands 70 

Treaty of August 25, 1921 73 

Treaty of February 11, 1922 74 

Japan in the Pacific 81 

Mandate and mandatory 82 

Belgian attitude, 1924 84 

Powers of the mandatory 85 

Administered as integral portions 85 

Mr. Miller on troops in mandates 87 



CONTENTS VII 

Situation II. — Status of islands in Pacific Ocean — Contd. 

Notes — Continued. Page 

Recruiting of inhabitants of mandates 88 

Mandates and war 90 

The Sudmark 91 

Doubtful status 92 

United States and mandates 93 

Area under Article XIX 94 

Fortifications in the Pacific 95 

Washington treaties and nonsignatories 96 

Interpretation of Washington treaties of 1921-22__ 97 

Military organization in mandates i _ 100 

Insular possessions in the Pacific 101 

Insular possessions and insular dominions 101 

Insular territories, possessions, dominions 102 

Kellogg-Briand pact, 1928 103 

Conclusion 105 

Situation III. — Neutral obligations 106 

Solution (a 1, 2, 3), (6 1, 2, 3) 107 

Notes 107 

Proclamations of neutrality, 1914-1918 107 

Netherlands declaration, 1914 108 

(a) (1) Transport of forces 109 

Transit of reservists 109 

Innocent passage 112 

Solution (a) (1) 113 

(a) (2) Entrance of vessels 114 

Public-owned merchant vessel 114 

Public vessels and commerce 115 

The Lake Monroe 117 

The Comte de Smet de Naeyer 117 

Decisions as to vessels 118 

League of Nations Committee, 1926 118 

Treatment of vessels 121 

Entrance of submarines 121 

Solution (a) (2) 123 

(a) (3) Entrance of prize 123 

The German UC 8, 1915 123 

Radio upon vessels 126 

Solution (a) (3) 126 

(6) (1) Supplying vessels of war at sea 126 

Supplies to vessels of war 126 

Suspected cargoes 128 

The Locksun, 1914 130 

The Berwind, 1914 131 

Supplies to vessels at sea 132 



VIII CONTENTS 

Situation III. — Neutral obligations — Continued. 

(6) (1) Supplying vessels of war at sea — Contd. Pagt 

German doctrine as to base 135 

Resolution of March 4, 1915, on bases 135 

The Farn, 1915 136 

Supplies to vessels of war at sea 138 

Solution (6) (1) 139 

(6) (2) Control of radio 140 

Hague Convention V, 1907 i 140 

Control of radio, 1914 141 

Attitude of United States on radio 144 

Use of Government radio 147 

Solution (6) (2) 149 

(6) (3) Belligerent use of cables 149 

Cable censorship 129 

Submarine cables_ 151 

Prior discussion 152 

Solution (6) (3) 152 



INTERNATIONAL LAW SITUATIONS 
WITH SOLUTIONS AND NOTES 



Situation I 

NEUTRALITY AND VESSELS 

States X and Y are at war. Other states are neutral. 
State X is a party to the Washington treaty limiting 
naval armament of 1922. State Y is not a party to this 
treaty. 

(a) The Swan, a merchant vessel lawfully flying the 
flag of state X enters a port O of the United States where 
it remains one week discharging and loading cargo. The 
decks of the Swan have been strengthened for the mount- 
ing of 5-inch guns, and the Swan from time to time com- 
municates by radio with a division of the fleet of state X 
to the north and with a division of the same fleet to 
the south of port O. 

(b) The Sparrow, a merchant vessel lawfully flying 
the flag of state Y enters port O of the United States 
and the owner contracts with a shipbuilder for the 
strengthening of the decks of the Sparrow so that she 
might mount a 5-inch gun and the same shipbuilder has, 
since war was declared, made contracts with a citizen of 
state X and with a citizen of state Y to build for each 
a merchant vessel with decks of such strength as to mount 
a 5-inch gun and also to build for each a merchant vessel 
of such construction as to make easy the transformation 
of these vessels to aircraft carriers. 

(c) Merchant vessels of state X and of state Y having 
decks strengthened to mount 5-inch guns and adapted for 

1 



2 NEUTRALITY AND VESSELS 

launching aircraft appear at opposite ends of the Panama 
Canal for the purpose of passing through and maintain 
that even if regarded as vessels of war they would have 
the same privileges as in the Suez Canal ; and vessels of 
war of state X enter the Gulf of Fonseca and without 
going within 3 miles of land await several days the 
arrival of other vessels of war and auxiliaries. Meantime 
aircraft from vessels of war of state X fly regularly over 
the state of Panama between the fleet of state X in the 
Caribbean Sea and the vessels in the Gulf of Fonseca. 

State Y protests against the sojourn of the Swwi at 
port O. (Under (a) above.) 

State X protests against the carrying out of the con- 
tract on the Sparrow at port O and the shipbuilder is in 
doubt as to the lawfulness of fulfilling his contracts witli 
the citizens of states X and Y. (Under (b) above.) 

The authorities at Panama desire to conform to the 
laws of neutrality. (Under (<?) above.) 

What should be clone in each case? Why? 

SOLUTION 

(a) The Swan may, as a merchant vessel, lawfully 
enter port O of the United States and discharge and load 
cargo, but the communication by radio with divisions of 
the fleet of state X is a violation of the neutrality of the 
United States and thereupon the radio apparatus should 
be dismantled and the Swan should be interned. 

(b) The contract for stiffening the decks of the Spar- 
row should not be executed because it would be in part 
an adaptation for use in war, and the contracts with 
states X and Y should not be executed. 

(c) The vessels appearing at opposite ends of the 
Panama Canal have not the same privileges as in the 
Suez Canal and should be allowed to pass through but 
each should, after passing through, be detained till the 
other has passed through in order that the departure of 
Dne may not be delayed by the passage of the other. 



WASHINGTON CONFERENCE, 1921-2 2 6 

The Gulf of Fonseca is a territorial gulf and there- 
fore not open to the vessels of state X. 

The aircraft from vessels of war of state X may not 
lawfully fly over Panama. 

NOTES 

General. — States X and Y being at war are under obli- 
gation to observe the law of war and the treaties to 
which they are parties. Other states being neutral are 
under similar obligations to observe the laws of neu- 
trality and the treaties to which they are parties. 

The plenipotentiaries at the Washington Conference 
on the Limitation of Naval Armament, 1921-22, state in 
the preamble of the treaty, signed February 6, 1922, and 
subsequently ratified by the five powers, that — 

Desiring to contribute to the maintenance of the general peace, 
and to reduce the burdens of competition in armament ; 

Have resolved, with a view to accomplishing these purposes, to 
conclude a treaty to limit their respective naval armament. (43 
U. S. Stat., Part. II, p. 1655.) 

Chapter I contains the general provisions relating to 
the limitation of naval armament, and these are set forth 
in Articles I to XX. It may therefore be presumed that 
the contractual articles of the treaty are for the purpose 
stated in Article I : 

The contracting powers agree to limit their respective naval 
armament as provided in the present treaty. (Ibid. p. 1657.) 

The categories mentioned in articles which follow are 
capital ships, aircraft carriers, noncapital ships, merchant 
ships, fortifications, and naval bases. 

(a) Use of radio. 

Sojourn in neutral port. — In situation I the Swan 
enters a neutral port as a merchant vessel of state X and 
proceeds to, discharge and load cargo. The decks of the 
Stoan have been stiffened for mounting 5 -inch guns. 
This, according to Article XIY, is of the nature of 



4 NEUTRALITY AND VESSELS 

preparation " for the installation of armaments for the 
purpose of converting " such a vessel into a vessel of 
war and is permitted in time of peace. While the United 
States might make inquiry to ascertain at what time the 
stiffening of the decks of the Swan took place, the United 
States is under no obligation to do this nor does it neces- 
sarily know the strength of the decks. The stiffening of 
the decks or other equipment of a vessel may be for the 
purpose of conversion of the vessel into a vessel of war, 
but the vessel is not yet converted and for the United 
States is a merchant vessel engaged in lawful commerce. 

General regulation of radio. — The Swan from time to 
time communicates by radio with a division of the fleet 
of state X. There arises, therefore, questions as to the 
legality of such act. 

During the World War the prohibition of the use of 
radio while not by identic rules was usually by rules based 
upon articles 3, 5, 8, and 9 of Hague Convention V, 1907, 
and article 5 of Hague Convention XIII, which are as 
follows : 

HAGUE CONVENTION' V 

Art. 3. Belligerents are likewise forbidden : 

a. To erect on the territory of a neutral power a wireless 
telegraph station or any apparatus for the purpose of communicat- 
ing with belligerent forces on land or sea ; 

&. To use any installation of this kind established by them 
before the war on the territory of a neutral power for purely 
military purposes, and which has not been opened for the service 
of public messages. 

Art. 5. A neutral power must not allow any of the acts referred 
(;o in articles 2 to 4 to occur on its territory. 

It is not bound to punish acts in violation of neutrality unless 
these acts have been committed on its own territory. 

Art. 8. A neutral power is not bound to forbid or restrict the 
use on behalf of the belligerents of telegraph or telephone cables 
or of wireless telegraph apparatus belonging to it or to companies 
or private individuals. 

Art. 9. Every measure of restriction or prohibition taken by a 
neutral power in regard to the matters referred to in articles 7 
,md 8 must be impartially applied by it to the belligerents. 



USE OF RADIO O 

A neutral power shall see to the observance of the same obliga- 
tion by companies or private individuals owning telegraph or 
telephone cables or wireless telegraph apparatus. 

HAGUE CONVENTION XIII 

Art. 5. Belligerents are forbidden to use neutral ports and 
waters as a base of naval operations against their adversaries, 
and, in particular, to erect wireless telegraph stations or any 
apparatus for the purpose of communicating with belligerent forces 
on land or sea. 

The rules were, in part, the result of events which had 
taken place during the Russo-Japanese War, 1904, which 
had shown the necessity of regulating the use of wireless 
telegraphy. The principles upon which the rules are 
based have, however, been recognized for a long time. 

While freedom is allowed in some respects in the use 
of neutral waters greater than in the use of neutral land, 
the belligerent is equally bound to refrain from acts 
which, if knowingly permitted, would constitute a non- 
fulfillment of neutrality. 

Article 25 of Hague Convention XIII, 1907, provides 
that— 

A neutral power is bound to exercise such surveillance as the 
means at its disposal allow to prevent any violation of the provi- 
sions of the above articles in its ports or roadsteads or in its 
waters. 

And article 26 provides: 

The exercise by a neutral power of the rights laid down in the 
present convention can never be considered as an unfriendly act 
by one or the other belligerent who has accepted the articles 
relating thereto. 

United States radio order, August 5, 19H. — President 
Wilson on August 5, 1914, issued the following order in 
regard to the use of radio : 

Whereas proclamations having been issued by me declaring 
the neutrality of the United States of America in the wars now 
existing between various European nations ; and 



6 NEUTRALITY AND VESSELS 

Whereas it is desirable to take precautions to insure the en- 
forcement of said proclamations in so far as the use of radio 
communication is concerned ; 

It is now ordered, by virtue of authority vested in me to 
establish regulations on the subject, that all radio stations within 
the jurisdiction of the United States of America are hereby pro- 
hibited from transmitting or receiving for delivery messages of 
an unneutral nature, and from in any way rendering to any one 
of the belligerents any unneutral service during the continuance 
of hostilities. 

The enforcement of this order is hereby delegated to the Secre- 
tary of the Navy, who is authorized and directed to take such 
action in the premises as to him may appear necessary. (191G 
N. W. C. Int. Law Topics, p. 87.) 

By a further Executive order of September 5, 1914, 
high-powered radio stations were taken under Govern- 
ment control in order that neutrality might be main- 
tained. 

Action of other states. — Norway and some other states 
had general rules relating to radio and published in time 
of peace. Other states issued regulations after the out- 
break of war. 

Norway had, in the Rules of Neutrality established in 
1912, stated : 

Chap. IV. (1) It is forbidden belligerent powers to use ports 
or waters of the kingdom as bases for naval operations against 
their enemies. 

It is especially forbidden to establish on the territory or in 
the territorial waters of the kingdom radio stations or any appa- 
ratus designed to serve as a means of communication with the 
belligerent forces whether on land or sea. (1917 N. W. C, Int. 
Law Documents, p. 186.) 

While in August, 1914, the Argentine Government 
forbade vessels of belligerent powers to use their radio 
in jurisdictional waters except in case of distress, in 
October it was found necessary to make an additional 
order directing that " from the time they enter the juris- 
dictional waters of the Republic until they leave them, 
vessels of the belligerent powers shall keep their radio- 
telegraphic poles lowered and their stations closed." 
Later orders covered other details. 



DISMANTLING RADIO / 

Dismantling radio apparatus. — As radio upon mer- 
chant vessels was, at the outbreak of the World War, a 
comparatively new equipment, the regulations for its use 
were not well established. States recognized the general 
obligations to maintain neutrality, but the specific re- 
sponsibilities for radio were not defined. 

On August 14, 1914, Chile issued rules concerning the 
surveillance of vessels in territorial waters of which 
paragraph 8 referred to r-uao: 

The use of radiotelegraphy is forbidden to all merchant ves- 
sels during their sojurn in the Chilean waters. To render this 
prohibition effective it will be convenient to dismantle the ap- 
paratus designed for this system of telegraphy. (1916 N. W. C, 
Int. Law Topics, p. 17.) 

The instructions issued by Chile, October 14, were as 
follows : 

1. All vessels provided with radio apparatus, without distinc- 
tion of nationality, which navigate in our territorial waters or 
are at anchor in our ports are forbidden to use the said apparatus. 

2. When arriving in a port or roadstead, these vessels ought 
to dismantle their antennae, breaking their connection with the 
gear and apparatus, as soon as they have been received by the 
maritime authorities, who will personally see to the strict accom- 
plishment of this order, by proceeding immediately to affix their 
seals and stamps on the doors, windows, skylights, and other 
ways of access to the place in which this apparatus is located. 

3. All national or foreign vessels which remain in a port more 
than four days will remove their antennae, which will be kept in 
the same place as the apparatus of the radio station, observing 
the same instructions for sealing the ways of access to this place. 

4. The maritime authorities will report to the office of the direc- 
tor of maritime territory on the accomplishment of the present 
instructions, not forgetting that their nonaccomplishment may 
compromise the neutrality of the country. (Ibid., p. 18.) 

An order of October 15, 1914, was somewhat more 
explicit : 

In addition to sealing and stamping the places in which radio 
apparatus is located, please order the lowering and disconnecting 
of the antennae from the halyards and radio apparatus of all 
steamers with radio installations, upon arriving at Chilean ports. 



8 NEUTEALITY AND VESSELS 

Steamers that remain more than four days in port ought to de- 
liver their antennae to the maritime authorities until the day of 
their departure, giving account by telegraph to the office of this 
director. Simpson. (Ibid., p. 18.) 

Colombia on July 14, 1915, took action to the follow- 
ing eff ect in regard to vessels : 

The vessels belonging to belligerent States and lying in Colom- 
bian waters will continue to be subject to the supervision and to 
the inspection of the authorities of the Republic, and their appa- 
ratus will remain incapable of operation and paralyzed in a man- 
ner believed to be effective ; and, if necessary, they will be trans- 
ported to land, in whole or in part, as will be prescribed. (Ibid., 
p. 46.) 

Guatemala on September 1, 1914, decreed : 

That from this date all merchant vessels of the belligerent 
nations when in the territorial waters of Guatemala or upon en- 
tering into them shall dismantle their wireless installations during 
such time as they shall remain in these waters. Vessels not com- 
plying with these regulations shall be considered as armed ships, 
and orders shall be given them to leave Guatemalan waters in 
conformity to convention No. 13 of The Hague, 1907. (Ibid., p. 58.) 

Uruguay made regulations in regard to the use of radio 
from time to time and on October 20, 1914, prescribed : 

No use can be made of apparatus installed on vessels lying in. 
the ports or territorial or jurisdictional waters of the Republic, 
except in accord with the orders of the national authority. 
(Ibid., p. 113.) 

Radio in Colombia. — In the early days of the World 
War complaints were made by the belligerents in regard 
to the use of radio stations in Colombia and in other 
South American States. The United Fruit Co. had before 
the war a station at Santa Marta, erected under a con- 
tract of July 19, 1911. By the terms of this contract 
the station was to be neutral, and might in case of for- 
eign or domestic war be placed under Government super- 
vision and censorship. The station at Cartagena was 
subject to like control. Owing to complaints and o wing- 
to the difficulty of securing expert censorship a resolution 
of September 11, 1914, stated : 



ATTITUDE OF COLOMBIA 9 

The service of the radio station of Cartagena is temporarily 
suspended until by virtue of the cooperation of suitable experts 
the supervision and preventive censorship of the local author- 
ities may be realized in the service of the station and in the 
transmission and delivery of its dispatches. As soon as suitable 
experts can be employed, who will render possible the pre- 
ventive censorship and in this manner the neutrality of the 
Republic will in a measure be clearly guaranteed, the station can 
resume its service by submitting to the obligatory censorship and 
supervision. (1916 N. W. C, Int. Law Topics, p. 39.) 

Later the Colombian Government wrote to its legation 
in Washington, as complaints had been received in 
regard to possible use of radio in different parts of 
Colombia : 

We have no wireless stations on the Pacific coast. 

As for the Atlantic, Cartagena radio station that belongs to 
a private company, the Government has a contract giving it full 
rights of inspection and censorship in case of war. 

The British Legation made reclamations on the ground that 
there was no characterized expert, and the Government to comply 
with the legation's wishes closed the station. 

Afterwards, the Government entered into an agreement with a 
professional expert, paid by the Government and put him at the 
head of the station, which was again opened. 

The British Legation after some days asked the dismissal of 
the German employees in the station, and although the Govern- 
ment's expert is the only one who receives or transmits radio- 
grams, it decided to dismiss and did dismiss foreign employees, 
and since then operates the station, handing its net produces 
[proceeds] to the company.* 

No codes are admitted. 

Now the British Legation considers that even plain words and 
phrases are suspect as they may be used with a conventional 
secret sense and on that new ground has asked the Government 
to close again the station. 

But as the company has rights not to be overlooked, the Gov- 
ernment can not comply with the Legation's wishes, still less when 
it has its own expert operating the station. This is the only 
pending question. 

The British Legation informed that it feared Germans may 
be hidden in Uraba using occult stations. The Government made 
investigations at Cartagena, at Turbo and at Quibdo and found 
9855—31 2 



10 NEUTRALITY AND VESSELS 

an abandoned ship, the Oscar, of the Compania Bananera, with 
wireless apparatus out of use. A special official was sent to 
bring back the apparatus. 

The British Legation tendered its thanks to the Government for 
its zeal. (1914 U. S. For. Bel., Sup. p. 686.) 

/Secretary/ of State to chairman Senate C omonittee on 
Foreign Relations. — The attitude of the Secretary of 
State of the United States as to control of radio was set 
forth in reply to a letter of Senator Stone which raised 
question as to censorship of radio messages. The Secre- 
tary said : 

The reason that wireless messages and cable messages require 
different treatment by a neutral government is as follows : 

Communications by wireless can not be interrupted by a bel- 
ligerent. With a submarine cable it is otherwise. The possi- 
bility of cutting the cable exists, and if a belligerent possesses 
naval superiority the cable is cut, as was the German cable near 
the Azores by one of Germany's enemies and as was the British 
cable near Fanning Island by a German naval force. Since a 
cable is subject to hostile attack, the responsibility falls upon the 
belligerent and not upon the neutral to prevent cable communi- 
cation. 

A more important reason, however, at least from the point of 
view of a neutral government, is that messages sent out from a 
wireless station in neutral territory may be received by belligerent 
warships on the high seas. If these messages, whether plain or in 
cipher, direct the movements of warships or convey to them infor- 
mation as to the location of an enemy's public or private vessels, 
the neutral territory becomes a base of naval operations, to permit 
which would be essentially unneutral. 

As a wireless message can be received by all stations and vessels 
within a given radius, every message in cipher, whatever its 
intended destination, must be censored ; otherwise military infor- 
mation may be sent to warships off the coast of a neutral. It is 
manifest that a submarine cable is incapable of becoming a means 
of direct communication with a warship on the high seas. Hence 
its use can not, as a rule, make neutral territory a base for the 
direction of naval operations. (1914 For. Bel. Sup., p. vnr.) 

Commission of Jurists, 1923. — While the rules drawn 
up by the Commission of Jurists in 1923 in regard to 
radio and aircraft have not been ratified and probably 
will not be ratified in their present form, they do enun- 
ciate the principles which may be expected to prevail. 



COMMISSION OF JURISTS, 192 3 11 

Article 2 of these rules is as follows : 

Belligerent and neutral powers may regulate or prohibit the 
operation of radio stations within their jurisdiction. (1924 N. 
W. 0., Int. Law Documents, p. 100.) 

In their report on this article the commission said : 

Article 17 of the radio-telegraphic convention of 1912 enables 
states to regulate or prohibit the use of radio stations within 
their jurisdiction by rendering applicable to radiotelegraphy cer- 
tain provisions of the international telegraphic convention of 
1875. In particular it is articles 7 and 8 of that convention 
which enables such measures of control or prohibition to be taken. 
The object of article 2 is to make it clear that such rights subsist 
equally in time of war. (Ibid., p. 99.) 

This report further says : 

The legislation of a large number of powers, for instance, that 
of the powers represented in the commission, already provides 
for the prohibition of the use of radio installations on board ves- 
sels within their jurisdiction. In harmony with articles 5 and 
25 of the convention concerning the rights and duties of neutral 
powers in maritime warfare (No. XIII of 1907), article 5 enacts 
the continuance of this regime in time of war and makes it ob- 
ligatory for all mobile radio stations. (Ibid., p. 101.) 

Upon these principles article 5 is based : 

Belligerent mobile radio stations are bound within the juris- 
diction of a neutral state to abstain from all use of their radio 
apparatus. Neutral governments are bound to employ the means 
at their disposal to prevent such use. (Ibid., p. 101.) 

Use of radio. — While the use of .radio by a merchant 
vessel may at times during war be essential for its safe 
and convenient navigation, it may at times be used for 
other purposes. In the case of the Sw\an, a merchant 
vessel of a belligerent in a neutral port, such use for 
safe navigation could not be affirmed. Communication 
with the fleet from a neutral port would be analogous to 
the use of the port as a base and would place the neutral 
under obligation to dismantle the radio and intern the 
Swan. The fact that the decks of the vessel are strength- 
ened does not place the neutral under other obligations 



12 NEUTRALITY AND VESSELS 

than to use ordinary diligence, and the Swan, conducting 
itself in accord with neutral regulations, should be treated 
as a merchant vessel entitled to usual trading privileges. 

SOLUTION 

(a) The Swan may, as a merchant vessel, lawfully 
enter port O of the United States and discharge and load 
cargo ; but the communication by radio with divisions of 
the fleet of state X is a violation of the neutrality of 
the United States, and thereupon the radio apparatus 
should be dismantled and the Sw\cm should be interned. 

(h) Strengthening of decks, structural changes. 

Fitting out by neutral. — The laws of the United States, 
mindful of the treaty of 1871 with Great Britain, pro- 
vide: 

Seo. 11. Whoever, within the territory or jurisdiction of the 
United States, fits out and arms, or attempts to fit out and arm, 
or procures to be fitted out and armed, or knowingly is con- 
cerned in the furnishing, fitting out, or arming, of any vessel, 
with intent that such vessel shall be employed in the service of 
any foreign prince or state, or of any colony, district, or people, 
to cruise or commit hostilities against the subjects, citizens, or 
property of any foreign prince or state, or of any colony, district, 
or people, with whom the United States are at peace, or whoever 
issues or delivers a commission within the territory or jurisdiction 
of the United States, for any vessel, to the intent that she may 
be so employed, shall be fined not more than $10,000 and im- 
prisoned not more than* three years. And every such vessel, her 
tackle, apparel, and furniture, together with all materials, arms, 
ammunition, and stores, which may have been procured for the 
building and equipment thereof, shall be forfeited ; one half to 
the use of the informer, and the other half to the use of the 
United States. 9 

Sec. 12. Whoever, within the territory or jurisdiction of the 
United States, increases or augments, or procures to be increased 
or augmented, or knowingly is concerned in increasing or aug- 
menting, the force of any ship of war, cruiser, or other armed 
vessel, which, at the time of her arrival within the United States, 
was a ship of war or cruiser or armed vessel, in the service of 
any foreign prince or state or of any colony, district, or people, or 



FITTING OUT VESSELS 13 

belonging to the subjects or citizens of any such prince or state, 
colony, district, or people, the same being at war with any for- 
eign prince or state or of any colony, district, or people, witl) 
whom the United States are at peace, by adding to the numbei 
of the guns of such vessel or by changing those on board of hei 
for guns of a larger caliber or by adding thereto any equipmen) 
solely applicable to war, shall be fined not more than $1,000 and 
imprisoned not more than one year. (35 U. S. Stat., p. 1089.) 

Departure of vessel. — It has been maintained that the 
burden of the conduct of war should not be shifted to 
neutrals but the principle of the exercise of " due dili- 
gence " by a neutral is at the same time admitted. 

The British proclamation of neutrality of October 21, 
1912, provided a penalty for any person who : 

3. Equips any ship with intent or knowledge or having reason- 
able cause to believe that the same shall or will be employed in 
the military or naval service of any foreign state at war with 
any friendly state. (105 British and Foreign State Papers, 
[1912], pp. 163, 166.) 

The proclamation also provided for the forfeiture of 
the ship. 

Neutrality proclamation, 1914- — The neutrality proc- 
lamation of the United States of August 4, 1914, in para- 
graph 8, provided against — 

Fitting out and arming, or attempting to fit out and arm, or 
procuring to be fitted out and armed, or knowingly being con- 
cerned in the furnishing, fitting out, or arming of any ship or 
vessel with intent that such ship or vessel shall be employed in 
the service of either of the said belligerents. (38 U. S. Stat., p. 
1999.) 

Memorandum of September 19, 1911±. — The State De- 
partment memorandum of September 19, 1914, gave the 
rules that the Government of the United States would 
follow in determining the status of armed merchant ves- 
sels. Admitting that merchant vessels might carry arma- 
ment when guns were not more than 6-inch caliber and 
not in the, forward part of the vessel, with usual personnel 
and service as before the war, these rules prescribe that 
the speed of the ship be slow, and rule E, by implica- 



14 NEUTRALITY AND VESSELS 

tion, did not grant privileges to a vessel which might, by 
evidence available at the time, be converted into a ship 
of war. 

E. The conversion of a merchant vessel into a ship of war is a 
question of fact which is to be established by direct or circumstan 
tial evidence of intention to use the vessel as a ship of war. 

This memorandum of the Department of State is in 
regard to defensively armed merchant vessels, and the 
British had assured the United States that these would 
not be used for attack. 

No. 289.] British Embassy, 

Washington, August 25, 191%. 

(Received August 26.) 

Sir: With reference to Mr. Barclay's notes, Nos. 252 and 2H9 
of the 4th and 9th of August, respectively, fully explaining the 
position taken up by His Majesty's Government in regard to the 
question of armed merchantmen, I have the honour, in view of 
the fact that a number of British armed merchantmen will now 
be visiting United States ports, to reiterate that the arming of 
British merchantmen is solely a precautionary measure adopted 
for the purpose of defense against attack from hostile craft. 

I have at the same time been instructed by His Majesty's Prin- 
cipal Secretary of State for Foreign Affairs to give the United 
States Government the fullest assurances that British merchant 
vessels will never be used for purposes of attack, that they are 
merely peaceful traders armed only for defense, that they will 
never fire unless first fired upon, and that they will never under 
any circumstances attack any vessel. 

I have, etc., 

Cecil Spring Rice. 

(1914 For. Rel. Sup., p. 604.) 

Note to Germany, 1914- — In a note to the American 
ambassador in Germany, November 7, 1914, the Acting 
Secretary of State said : 

The practice of a majority of nations and the concensus of 
opinion by the leading authorities on international law, including 
many German writers, support the proposition that merchant 
vessels may arm for defense without losing their private character 
and that they may employ such armament against hostile attack 
without contravening the principles of international law. 



NOTE TO GERMANY, 1914 15 

The purpose of an armament on a merchant vessel is to be 
determined by various circumstances, among which are the num- 
ber and position of the guns on the vessel, the quantity of ammuni- 
tion and fuel, the number and sex of the passengers, the nature 
of the cargo, etc. Tested by evidence of this character the ques- 
tion as to whether an armament on a merchant vessel is intended 
solely for defensive purposes may be readily answered and the 
neutral government should regulate its treatment of the vessel in 
accordance with the intended use of the armament. 

This Government considers that in permitting a private vessel 
having a general cargo a customary amount of fuel, an average 
crew, and passengers of both sexes on board, and carrying a small 
armament and a small amount of ammunition, to enjoy the 
hospitality of an American port as a merchant vessel, it is in no 
way violating its duty as a neutral. Nevertheless it is not un- 
mindful of the fact that the circumstances of a particular case 
may be such as to cause embarrassment and possible controversy 
as to the character of an armed private vessel visiting its ports. 
Recognizing, therefore, the desirability of avoiding a ground of 
complaint, this Government, as soon as a case arose, while frankly 
admitting the right of a merchant vessel to carry a defensive 
armament, expressed its disapprobation of a practice which com- 
pelled it to pass upon a vessel's intended use, which opinion, if 
proven subsequently to be erroneous, might constitute a ground 
for a charge of unneutral conduct. 

As a result of these representations no merchant vessels with 
armaments have visited the ports of the United States, since the 
10th of September. In fact, from the beginning of the European 
war but two armed private vessels have entered or cleared from 
ports of this country, and as to these vessels their character as 
merchant vessels was conclusively established. (9 A. J. I. L., 
Spec. Sup., p. 239.) 

United States law, 1917. — By an act of June 15, 1917, 
the United States made provision for the enforcement of 
neutrality under Title V. 

Sec. 2. During a war in which the United States is a neutral 
nation the President, or any person thereunto authorized by him, 
may detain any armed vessel owned wholly or in part by Amer- 
ican citizens, or any vessel, domestic or foreign (other than one 
which has entered the ports of the United States as a public- 
vessel ), which is manifestly built for warlike purposes or has been 
converted or adapted from a private vessel to one suitable for 
warlike use, until the owner or master, or person having charge 



16 NEUTRALITY AND VESSELS 

of such vessel, shall furnish proof satisfactory to the President, 
or to the person duly authorized by him, that the vessel will not 
be employed by the said owners, or master, or person having 
charge thereof, to cruise against or commit or attempt to commit 
hostilities upon the subjects, citizens, or property of any foreign 
prince or state, or of any colony, district, or people with which 
the United States is at peace, and that the said vessel will not 
be sold or delivered to any belligerent nation, or to an agent, 
officer, or citizen of such nation, by them or any of them, within 
the jurisdiction of the United States, or, having left^ that juris- 
diction, upon the high seas. (40 U. S. Stat., pp. 217, 221.) 

General provisions. — After the Alabama case was de- 
cided the principle of obligation to use due diligence to 
prevent the outfitting of vessels for use in war came to 
be more and more strictly interpreted. It has become 
customary to insert in proclamations of neutrality the 
rules of the treaty of Washington, 1871, as follows : 

Art. VI. A neutral government is bound — 

First, to use due diligence to prevent the fitting out, arming, 
or equipping, within its jurisdiction, of any vessel which it has 
reasonable ground to believe is intended to cruise or to carry on 
war against a power with which it is at peace; and also to use 
like diligence to prevent the departure from its jurisdiction of 
any vessel intended to cruise or carry on war as above, such vessel 
having been specially adapted, in whole or in part, within such 
jurisdiction to warlike use. 

Secondly, not to permit or suffer either belligerent to make use 
of its ports or waters as the base of naval operations against the 
other, or for the purpose of the renewal or augmentation of mili- 
tary supplies or arms or the recruitment of men. 

Thirdly, to exercise due diligence in its own ports and waters 
and, as to all persons within its jurisdiction, to prevent any 
violation of the foregoing obligations and duties. (17 U. S. 
Stat., pp. 863, 865.) 

There may be an offense under the Criminal Code of 
the United States, article 11, even if the vessel be not 
" armed or manned for the purpose of committing hos- 
tilities before she leaves the United States, if it is the 
intention that she be so fitted subsequently." (The City 
of Mexico (D. C. 1886), 28 Federal Keporter 148.) 



ARMED MERCHANT VESSELS 17 

Armed merchant vessels. — Few practices in naval war- 
fare have been the subject of more diverse opinions in 
recent years than the arming of merchant vessels. For 
a time after privateering was declared abolished in the 
declaration of Paris, 1856, it was thought that the prac- 
tice was at an end. Auxiliary vessels were soon sug- 
gested as avoiding the evils of privateering, as they 
would be under government control in time of war. Sys- 
tems of subsidies established a measure of government 
right, which might extend to appropriation in time of 
war. 

The general arming of merchant vessels would, how- 
ever, make effective government control through trained 
naval personnel impracticable, unless the regular naval 
personnel should be greatly reduced. Without such con- 
trol the use of armament would be by private direction. 
It would be difficult for private persons to distinguish 
between offensive and defensive acts. A powerful gun 
might in itself be a temptation for a patriotic private 
citizen to try it upon an enemy public vessel which he 
deemed inferior. Sometimes the arms have been fur- 
nished by the government, but the responsibility for the 
use of the arms has not been assumed. It is not always 
easy to argue that the arming is to prevent or in antici- 
pation of an unlawful attack by an enemy vessel of war, 
for the vessel of war is under the same obligation to 
observe the law as is the merchant vessel. The old arm- 
ing against privateers, pirates, sea marauders, etc., is 
not supported as necessary at present. Practically, the 
only purpose would be arming against submarines, and 
the effectiveness of this is now questioned by some, and 
by others the arming regarded as an evidence of an 
intent to engage in hostile operations, which should place 
the armed vessel in the category of vessels of war, even 
though the intent is to engage only a particular class of 
vessel. For though a small vessel of war with guns of 
short range does not intend to engage a capital vessel of 



18 NEUTRALITY A!NT) VESSELS 

war of long-range guns, this intent does not remove the 
small vessel from the category of vessels of war. It is 
therefore maintained with considerable force that intent 
can not be determined, while armament is an ascertain- 
able fact, which being present only in time of war must 
be for purposes of war, and that the size of the pro- 
jectile or the part of the vessel from which it is fired 
should not protect the vessel or give it special privileges. 
In spite of such arguments the practice in the World 
AYar, 1914—1918, sanctioned the arming of merchant ves- 
sels, and neutrals with few exceptions accorded armed 
merchant vessels privileges in their ports. 

The submarine had for some time before the outbreak of the 
war of 1914-1918 formed an integral part of the naval forces of 
many states ; it is a vessel used for military offense and comes 
under the general term of a " ship of war." The functions and 
duties of warships in belligerent operations had been settled by 
the customary law of nations, and there can be no doubt that 
these principles should apply to submarine as to surface ships. 
(Higgins in eighth edition, Hall, Int. Law, p. 627.) 

Hall had said : 

By some writers it is asserted that a noncommissioned ship 
has also a right to attack. If there was ever anything to be said 
for this view, and the weight of practice and of legal authority 
was always against it, there can be no question that it is too 
much opposed to the whole bent of modern ideas to be now open 
to argument. There is no such reason at sea as there is on land 
for permitting ill-regulated or unregulated action. On the com- 
mon ground of the ocean a man is not goaded to leave the non- 
combatant class, if he naturally belongs to it, by the peril of his 
country or his home. Every one's right to be there being moreover 
equal, the initiative in acts of hostility must always be aggressive ; 
and on land irregular levies only rise for defence, and are only 
permissible for that purpose. It is scarcely necessary to add that 
noncommissioned ships offer no security that hostilities will be 
carried on by them in a legitimate manner. Efficient control at 
sea must always be more difficult than on land ; and if it was 
found that the exercise of due restraint upon privateers was im- 
possible, a fortiori, it would be impossible to prevent excesses 
from being indulged in by noncommissioned captors. (Ibid., 
p. 630.) 



TREATY, 1922, ARTICLE XIV 19 

Article XIV. — The treaty of 1922 limiting naval arma- 
ment in Article XIV prohibits preparation for " installa- 
tion of warlike armament for the purpose of convert- 
ing " merchant ships into vessels of war " other than the 
necessary stiffening of decks." The French form of 
Article XIV might be somewhat more liberally inter- 
preted than the English form which was the original 
form proposed to the conference. It was not intended 
to modify that form and the meaning of the French and 
English may be considered as the same, particularly as 
in Article XI the English expression " other than " is 
translated into French as " en dehors " while in Article 
XIV the same English expression is translated 
" toutefois." 

Further, these preparations mentioned in Article XIV 
are preparations which by terms of that artitcle are lim- 
ited to the " time of peace," and certainly if made in 
time of war, the preparation would be presumed for war 
purposes. 

It should also be noticed under Article XI that while 
limitation to 10,000 tons is prescribed for construction or 
acquisition of vessels of war other than capital ships and 
aircraft carriers, no such tonnage limitation is prescribed 
for auxiliary vessels "not taken in time of peace under 
government control for fighting purposes." Article XIV, 
however, provides for preparation of the merchant ma- 
rine in time of peace for mounting guns, not exceeding 
6-inch caliber, without regard to the tonnage, speed, or 
other character of the merchant ship. There is no limita- 
tion upon the number of guns or their location. Sim- 
ilarly, there is not provision that these guns shall be used 
for defensive purposes only, but on the other hand, the 
equipment is stated to be for " converting such ships into 
vessels of war," the sole limitation being that the prepa- 
ration " in time of peace " be for " guns not exceeding 
6-inch caliber." Additional stiffening of decks would 
undoubtedly be possible during war and a fast and large 



20 NEUTRALITY AND VESSELS 

merchant marine might become a very effective naval 
auxiliary force as vessels of war. 

This Article XIV implies that the arming of merchant 
ships for conversion is to be continued in practice and 
raises question as to the obligation of a neutral when a 
vessel having its decks strengthened for 6-inch guns is 
within its ports. 

Article 17 of Hague Convention XIII relates to ships 
of war, but in time of war might be regarded as applying 
equally to vessels which would evidently be ships of war. 

In neutral ports and roadsteads belligerent ships of war can 
carry out only such repairs as are absolutely necessary to render 
them seaworthy, and can not add in any manner whatsoever to 
their fighting force. The neutral authorities shall decide what 
repairs are necessary, and these must be carried out with the 
least possible delay. 

Neutral obligation. — The rules of the treaty of Wash- 
ington, 1871, have strongly influenced the attitude toward 
neutral obligation. These rules were before The Hague 
peace conferences and article 8 of Convention XIII of 
the 1907 conference is a modification of the rule of 1871, 
as follows: 

A neutral government is bound to employ the means at its dis- 
posal to prevent the fitting out or arming of every vessel within 
its jurisdiction which it has reason to believe is intended to cruise, 
or engage in hostile operations, against a power with which that 
government is at peace. It is also bound to display the same 
vigilance to prevent tha departure from its jurisdiction of every 
vessel intended to cruise, or engage in hostile operations, which 
has been, within the said jurisdiction, adapted, entirely or in part, 
for use in war. 

While the implication is that the neutral must weigh 
the intent, " the fitting out and arming " or the adapting 
for use in war would be the evidence first considered. In 
this article 8, vigilance is to be displayed to prevent the 
" departure from its jurisdiction of every vessel intended 
to cruise, or engage in hostile operations, which has been, 
within the said jurisdiction, adapted, entirely or in part 
for use in war." 



AIRCRAFT OVER PANAMA 21 

Article 8 of Hague Convention XIII specifically pro- 
hibits against " fitting out or arming " of a vessel of war 
" entirely or in part " and enjoins the neutral government 
to use " the means at its disposal " to prevent the de- 
parture of any vessel intended for use in war. 

Article XIV clearly implies that in time of war the 
stiffening of the decks of a merchant vessel of a belliger- 
ent for the " installation of warlike armaments " would 
probably be regarded as with purpose of converting such 
vessel into a vessel of war and there is no reservation 
which would limit the use of such vessel to defensive 
purposes. This Article XIV states that " the necessary 
stiffening of decks for mounting of guns not exceeding 
G-inch caliber " is as an exception among the preparatory 
installations which in time of peace may be made for 
conversion of merchant vessels into vessels of war. 

SOLUTION 

(b) The contract for stiffening the decks of the Spaf- 
row should not be executed because it would be in part 
an adaptation for use in war, and the contracts with 
states X and Y should not be executed. 

(c) Passage of Panama Canal, aircraft over Panama. 

Report of Commission of Jurists, 1923. — The Com- 
mission of Jurists appointed under the provision of the 
resolution of the Conference on the Limitation of Arma- 
ment, February 4, 1922, reported on February 19, 1923. 
Article 12 of this report was as follows : 

In time of war any state, whether belligerent or neutral, may 
forbid or regulate the entrance, movement, or sojourn of aircraft 
within its jurisdiction. (1924 N. W. C, Int. Law Documents, 
p. 113.) 

Of this article the report says : 

In time of peace many states are subject to treaty obligations 
requiring them to allow aircraft of other states to circulate in 
the air space above their territory. In time of war a state must 



22 NEUTRALITY AND VESSELS 

possess greater freedom of action. Article 12, therefore, recog- 
nizes the liberty of each state to enact such rules on this sub- 
ject as it may deem necessary. (Ibid., 113.) 

Further this same report says : 

To avoid any suggestion that it is on the neutral government 
alone that the obligation is incumbent to secure respect for its 
neutrality, article 39 provides that belligerent aircraft are under 
obligation to respect the rights of neutral powers and to abstain 
from acts within neutral jurisdiction which it is the neutral's 
duty to prevent. 

Other rules embodying principles analogous to those 
for war on land or on sea were drafted but these have 
not been ratified. 

Treaties on Panama Canal. — By the treaty of 1901 be- 
tween the United States and Great Britain it was pro- 
vided in Article III: 

The United States adopts, as the basis of the neutralization of 
such ship canal, the following rules, substantially as embodied 
in the convention of Constantinople, signed the 28th October, 1888, 
far the free navigation of the Suez Canal, that is to say : 

1. The canal shall be free and open to the vessels of commerce 
and of war of all nations observing these rules, on terms of 
entire equality, so that there shall be no discrimination against 
any such nation, or its citizens or subjects, in respect of the con- 
ditions or charges of traffic, or otherwise. Such conditions and 
charges of traffic shall be just and equitable. 

2. The canal shall never be blockaded, nor shall any right of 
war be exercised nor any act of hostility be committed within it. 
The United States, however, shall be at liberty to maintain such 
military police along the canal as may be necessary to protect it 
against lawlessness and disorder. 

3. Vessels of war of a belligerent shall not revictual nor take 
any stores in the canal except so far as may be strictly necessary ; 
and the transit of such vessels through the canal shall be effected 
with the least possible delay in accordance with tbe regulations 
in force, and with only such intermission as may result from 
the necessities of the service. 

Prizes shall be in all respects subject to the same rules as 
vessels of war of the belligerents. 

4. No belligerent shall embark or disembark troops, munitions 
of war, or warlike materials in the canal, except in case of acci- 



CANAL ZONE NEUTRALITY 23 

dental hindrance of the transit, and in such case the transit shall 
be resumed with all possible dispatch. 

5. The provisions of this article shall apply to waters adjacent 
to the canal, within 3 marine miles of either end. Vessels of 
war of a belligerent shall not remain in such waters longer than 24 
hours at any one time, except in case of distress, and in such 
case, shall depart as soon as possible; but a vessel of war of one 
belligerent shall not depart within 24 hours from the departure 
of a vessel of war of the other belligerent. 

6. The plant, establishments, buildings, and all work necessary 
to the construction, maintenance, and operation of the canal shall 
be deemed to be part thereof, for the purposes of this treaty, and 
in time of war, as in time of peace, shall enjoy complete im- 
munity from attack or injury by belligerents, and from acts cal- 
culated to impair their usefulness as part of the canal. (32 U. S. 
Stat, Pt. II, pp. 1903, 1904.) 

Panama in the treaty of 1903 with the United States 
agreed in Article XVIII that — 

The canal, when constructed, and the entrances thereto shall 
be neutral in perpetuity, and shall be opened upon the terms pro- 
vided for by Section I of article 3 of, and in conformity with all 
the stipulations of, the treaty entered into by the Governments of 
the United States and Great Britain on November 18, 1901. (33 
U. S. Stat, Pt. II, pp. 2234, 2239.) 

Neutrality proclamatio7i, November IS, 1914- — The 
rules in regard to neutrality of the Canal Zone define 
" vessel of war " : 

Rule 1. A vessel of war, for the purposes of these rules, is 
defined as follows : A public armed vessel, under the command of 
an officer duly commissioned by the government whose name 
appears on the list of officers of the military fleet and the crew 
of which are under regular naval discipline, which vessel is quali- 
fied by its armament and the character of its personnel to take 
offensive action against the public or private ships of the enemy. 
(38 U. S. Stat., p. 2039.) 

It was provided in rule 2 that the same treatment 
should be given to a vessel " employed by a belligerent 
power as a transport or fleet auxiliary or in any other 
way for the direct purpose of prosecuting or aiding hos- 
tilities, whether by land or sea ; but such treatment shall 



24 NEUTRALITY AND VESSELS 

not be given to a vessel fitted up and used exclusively as a 
hospital ship." 

Kule 9 prescribed the same treatment for vessels of 
rule 1 and of rule 2, and rule 11 reads : 

When vessels of war or vessels falling under rule 2, belonging 
to or employed by opposing belligerents, are present simultane- 
ously in the waters of the Canal Zone, a period of not less than 24 
hours must elapse between the departure of the vessel belonging 
to or employed by one belligerent and the departure of the vessel 
belonging to or employed by his adversary. 

Gulf of Fonseca, 1917. — The Bryan- Chamorro treaty 
of 1914, by which a right to establish a naval base in the 
territory of Nicaragua bordering on the Gulf of Fonseca 
was granted to the United States, came up for considera- 
tion before the Central American Court of Justice in 
1917. The court, consisting of 5 jurors, considered 24 
questions. Among these, several relate to the status of 
the Gulf of Fonseca. 

Ninth question. — Taking into consideration the geographic and 
historic conditions, as well as the situation, extent, and configura- 
tion of the Gulf of Fonseca, What is the international legal status 
of that gulf? 

The judges answered unanimously that it is an historic bay 
possessed of the characteristics of a closed sea. 

Tenth question. — As to which of those characteristics are the 
high parties litigant in accord? 

The judges answered unanimously that the parties are agreed 
that the gulf is a closed sea. 

Eleventh question. — What is the legal status of the Gulf of 
Fonseca in the light of the foregoing answer and the concurrence 
of the high parties litigant, as expressed in their arguments, with 
respect to ownership and the incidents derived therefrom? 

Judges Medal, Oreamuno, Castro, Ramirez, and Bocanegra 
answered that the legal status of the Gulf of Fonseca, according 
to the terms of the question, is that of property belonging to the 
three countries that surround it ; and Judge Gutierrez Navas 
answered that the ownership of the Gulf of Fonseca belongs, 
respectively, to the three riparian countries in proportion. 

Twelfth question. — Are the high parties litigant in accord as 
to the fact that the waters embraced in the inspection zones that 
pertain to each, respectively, are intermingled at the entrance of 
the Gulf of Fonseca? 



GULF OF FONSECA, 1917 25 

The judges answered unanimously that the high parties are 
agreed that the waters which form the entrance to the gulf 
intermingle. 

Thirteenth question. — What direction should the maritime in- 
spection zone follow with respect to the coasts of the countries 
that surround the gulf? 

Judges Medal, Oreamuno, Castro Ramirez, and Bocanegra 
answered that the zone should follow the contours of the respec- 
tive coasts, as well within as outside the gulf ; and Judge 
Gutierrez Navas that, with respect to the Gulf of Fonseca, the 
radius of a marine league zone of territorial sea should be 
measured from a line drawn across the bay at the narrowest 
part of the entrance toward the high seas, and the zone of inspec- 
tion extends 3 leagues more in the same direction. 

Fourteenth question. — Does the right of coownership exist be- 
tween the Republics of El Salvador and Nicaragua in the non- 
littoral waters of the gulf, and in those waters also, that are 
intermingled because of the existence of the respective zones of 
inspection in which those Republics exercise police power and 
the rights of national security and defense? 

Judges Medal, Oreamuno, Castro Ramirez, and Bocanegra 
answered that such right of coownership does exist, without preju- 
dice, however, to the rights that belong to Honduras in those 
nonlittoral waters ; Judge Gutierrez Navas answered in the 
negative. 

Fifteenth question. — Wherefore, as a consequence, and conform- 
ably with their internal laws and with international law, should 
there be excepted from the community of interest or coownership 
the league of maritime littoral that belongs to each of the States 
that surround the Gulf of Fonseca adjacent to the coasts of their 
mainlands and islands, respectively, and in which they have 
exercised, and may exercise, their exclusive sovereignty? 

Answered in the affirmative by Judges Medal, Oreamuno. and 
Castro Ramirez; and in the negative by Judge Gutierrez Navas, 
on the ground that in the interior of closed gulfs or bays there 
is no littoral zone ; Judge Bocanegra answered in the affirmative 
on the ground that the high parties litigant, having accepted the 
Gulf of Fonseca as a closed bay, the existence of the marine 
league of exclusive ownership becomes necessary since the gulf 
belongs to three nations instead of one. (11 A. J. I. L., 1917, 
p. 693.) 

Aerial navigation convention, 1919. — During the World 
War many questions had arisen in regard to the use of 
the air. In the convention for the regulation of aerial 

9855—31 3 



26 NEUTRALITY AND VESSELS 

navigation of 1919 certain general principles were set 
forth. In article 38 it was stated that the convention 
did not affect the freedom of action of the contracting 
states, either as belligerents or as neutrals. It is not to 
be assumed that belligerents would have greater freedom 
in time of war in neutral aerial space than in time of 
peace. 

The following are some of the articles which seemed 
to be generally accepted : 

ARTICLE 1 

The high contracting parties recognize that every power has 
complete and exclusive sovereignty over the air space above its 
territory. 

For the purpose of the present convention the territory of a 
state shall be understood as including the national territory, both 
that of the mother country and of the colonies, and the territorial 
waters adjacent thereto. 



ARTICLE 3 

Each contracting state is entitled, for military reasons or in 
the interest of public safety, to prohibit the aircraft of the 
other contracting states, under the penalties provided by its 
legislation and subject to no distinction being made in this 
respect between its private aircraft and those of the other 
contracting states, from flying over certain areas of its territory. 

In that case the locality and the extent of the prohibited areas 
shall be published and notified beforehand to the other contracting 
states. 



ARTICLE 32 

No military aircraft of a contracting state shall fly over the 
territory of another contracting state nor land thereon without 
special authorization. In case of such authorization the military 
aircraft shall enjoy in principle, in the absence of special stipula- 
tion, the privileges which are customarily accorded to foreign 
ships of war. 

A military aircraft which is forced to land or which is re- 
quested or summoned to land shall by reason thereof acquire 



CANAL ZONE NEUTRALITY 27 

no right to the privileges referred to in the above paragraph. 
(Treaties, Conventions, International Acts, Protocols, and Agree- 
ments Between the United States and Other Powers, vol. Ill, 
pp. 3768, 3772.) 

Panamia cities, 191Jf. — In the proclamation of the 
United States relating to the neutrality of the Panama 
Canal Zone, November 13, 1914, it was provided, as to 
aircraft : 

Rule 15. Aircraft of a belligerent power, public or private, are 
forbidden to descend or arise within the jurisdiction of the United 
States at the Canal Zone or to pass through the air spaces above 
the lands and waters within said jurisdiction. 

Rule 16. For the purpose of these rules, the Canal Zone includes 
the cities of Panama and Colon and the harbors adjac9nt to the 
said cities. (38 U. S. Stat. p. 2039.) 

The agreement of October 10, 1914, had provided : 

That hospitality extended in the waters of the Republic of 
Panama to a belligerent vessel of war or a vessel belligerent or 
neutral, whether armed or not, which is employed by a belligerent 
power as a transport or fleet auxiliary or in any other way for 
the direct purpose of prosecuting or aiding hostilities, whether by 
land or sea, shall serve to deprive such vessel of like hospitality 
in the Panama Canal Zone for a period of three months, and vice 
versa. (Ibid. p. 2042.) 

SOLUTION 

(c) The vessels appearing at opposite ends of the Pan- 
ama Canal have not the same privileges as in the Suez 
Canal, and should be allowed to pass through; but each 
should, after passing through, be detained till the other 
has passed through, in order that the departure of one 
may not be delayed by the passage of the other. 

The Gulf of Fonseca is a territorial gulf, and there- 
fore not open to the vessels of state X. 

The aircraft from vessels of war of state X may not 
laAvfully fly over Panama. 



Situation II 

STATUS OF ISLANDS IN PACIFIC OCEAN 

What changes in status of the islands of the Pacific 
Ocean have occurred since 1917? 

CONCLUSION 

No exact interpretation of agreements relating to is- 
lands in the Pacific Ocean and entered into since 1917 
has been made. The introduction of the system of man- 
dates under article 22 of the Covenant of the League of 
Nations, 1919, the restrictions of fortifications by article 
19 of the treaty limiting naval armament, 1922, and the 
other agreements, and the declaration of the Washing- 
ton conference, 1922, as well as the " Kellogg-Briand 
pact " of 1928. have, however, greatly modified the status 
of the islands in the Pacific Ocean as areas of possible 
belligerent action. 

NOTES 

General. — The status of islands in the Pacific Ocean 
iu 1917 was dependent for the most part upon their re- 
lation to individual states. Some islands had been the 
subject of joint or collective action of states as in the 
case of the Samoan Islands. In the North Pacific Ocean, 
Germany, prior to the World War, had control of several 
groups of islands, and prior to 1922 other states exercised 
in other groups ordinary state authority. The results 
of the World War introduced certain new practices in the 
disposition of territory of the Pacific area. The system 
of administration by mandatories was substituted for 
direct acquisition. Later by agreement the exercise of 
28 



MANDATES AND DEPENDENCIES 29 

certain rights within the North Pacific area was re- 
nounced. Both the system of mandates and the treaties 
in regard to insular possessions or dominions in the Pa- 
cific have received much consideration, particularly the 
idea — mandates and control of backward areas. 

Early idea of mandates. — The idea of mandate is not 
new in law. In Roman law a mandate might be the 
method by which the Emperor made known his will to a 
public functionary, but it was generally used to cover a 
quasi agency through the person to whom the mandate 
was given (Mandatarius). This person really acts in his 
own name rather than as an agent and the responsibili- 
ties are his. The Roman law limitation was to the effect 
that " He who discharges a mandate may not exceed its 
limitation." (Digest, XVII, 1, 3, 2.) 

Later ideas of mandates. — In modern times one who 
accepted a mandate usually engaged to perform some 
service as regards the trust committed to him. It was 
customary to require an accounting for the service. In 
the mandate there was an implication of a performance 
of something more than simple custody, thus involving 
the performance of some obligation on the part of the 
mandatory power. 

Forms of control of dependent areas. — The family of 
nations idea as variously understood at different periods, 
for example, 1648, 1776, 1856, 1899, seem to imply some 
collective obligation toward world welfare. The basis of 
membership in the family was recognition of interna- 
tional obligations and common principles. 

The family of nations gradually assumed that it or its 
members might act as guardians, trustees, or assume the 
custody for peoples or areas outside of Europe, e. g., in 
Africa, Pacific islands, China, etc. 

In the case of Johnson v. Mcintosh, in the Supreme 
Court of the United States, 1823, Chief Justice Marshall 
said: 

On the discovery of this immense continent (America) the 
nations of Europe were eager to appropriate to themselves so 



30 STATUS OF ISLANDS IN PACIFIC OCEAN 

much of it as they could respectively acquire. Its vast, extent 
offered an ample field to the ambition and enterprise of all; and 
the character and religion of its inhabitants afforded an apology 
for considering them as a people over whom the superior genius 
of Europe might claim an ascendency. The potentates of the 
Old World found no difficulty in convincing themselves that they 
made ample compensation to the inhabitants of the new, by 
bestowing on them civilization and Christianity in exchange for 
unlimited independence. (8 Wheat. 543.) 

This control by European nations of areas outside of 
Europe received various names and was not uniform in 
degree or character, e. g., colonies, protectorates, suze- 
rainties, spheres of influence, spheres of interest, etc. 
Often there was a desire to obtain a right without assum- 
ing the corresponding obligation. There are 50 or more 
examples of varied control since the early part of the 
nineteenth century, e. g., the Ionian Islands, South Afri- 
can Republic, Cuba, Philippines, etc. 

The Institute of International Law in 1888 (Annuaire, 
vol. 10, pp. 173-201) took up consideration of this matter 
of dependent or less advanced peoples and proposed that 
when other states assumed sovereignty over such areas 
as were occupied by aboriginal or less advanced peoples 
the new authority should ameliorate the moral and mate- 
rial condition of these people, should provide for their 
education, guarantee liberty of conscience, both to natives 
and to aliens, freedom of worship, abolish slavery, pro- 
vide for the " open door," prohibit the sale of intoxicat- 
ing liquors, etc. 

From the above it is evident that the idea of assump- 
tion of trusteeship over backward peoples has long been 
well established, and that the Covenant of the League 
of Nations in article 22 is merely a statement in concrete 
form of principles somewhat differently set forth in 
earlier documents. 

During the latter part of the nineteenth century the 
states which regarded themselves as civilized often indi- 
cated their desire and intention to protect and to give to 
less advanced regions the benefits of their civilization. 



BRUSSELS ACT, 18 9 31 

This was particularly true in regard to Africa, and fre- 
quent conventions were entered into assuming responsi- 
bilities which were sometimes termed "tutorship," 
" guardianship," " wardship," etc. The general act of 
the Brussels conference in 1890 gives as its object " the 
firm intention of putting an end to the crimes and devas- 
tations engendered by the traffic in African slaves, of 
efficiently protecting the aboriginal population of Africa, 
and of securing for that vast continent the benefits of 
peace and civilization." 

Brussels act, 1890. — The general act for the repres- 
sion of African slave trade drawn up at Brussels in 1890, 
modifying the general act of Berlin of 1885, and usually 
referred to as the Brussels act of 1890, has regard to the 
protection of the aboriginal population of Africa. This 
act presumes the exercise of sovereignty or of the author- 
ity of a protectorate, and its articles cover many of the 
topics embodied in the terms of the class C mandates, 
such as the abolition of the slave trade, regulation of the 
traffic in arms and in intoxicating liquors, protection of 
missionaries, etc. A convention revising the general act 
and declaration of Brussels, July 2, 1890, was drawn up 
at Saint-Germain-en-Laye, September 10, 1919. This 
convention of 1919 renews many of the provisions of the 
earlier conventions with view to insuring " by arrange- 
ments suitable to modern requirements the application 
of the general principles of civilization established by 
the acts of Berlin and Brussels." These and other con- 
ventions show a recognition of collective responsibility 
for the well-being of less advanced peoples. In the set- 
ting up of control by protectorates, suzerainties, spheres 
of influence, spheres of interest, there has often been an 
attempt to secure for the dominant, state rights without 
the corresponding obligations. 

American attitude. — The United States has from time 
to time assumed jurisdiction over tribes, sometimes speak- 
ing of them as " wards of the nation," or " pupils." 



32 STATUS OF ISLANDS IN PACIFIC OCEAN 

Liberia has been mentioned, and the United States has 
called itself " the next friend." 

When by article 1 of the treaty of peace with the 
United States, 1898, Spain renounced all claim to sover- 
eignty over and title to Cuba, question arose as to its 
status. A case before the Supreme Court in 1901 stated : 

While by the act of April 25, 1898, declaring war between this 
country and Spain, the President was directed and empowered 
to use our entire land and naval forces, as well as the militia of 
the several States to such extent as was necessary, to carry such 
act into effect, that authorization was not for the purpose of 
making Cuba an integral part of the United States but only for 
the purpose of compelling the relinquishment by Spain of its 
authority and government in that island and the withdrawal of 
its forces from Cuba and Cuban waters. The legislative and 
executive branches of the Government, by the joint resolution 
of April 20, 1898, expressly disclaimed any purpose to exercise 
sovereignty, jurisdiction, or control over Cuba " except for the 
pacification thereof," and asserted the determination of the 
United States, that object being accomplished, to leave the gov- 
ernment and control of Cuba to its own people. All that has been 
done in relation to Cuba has had that end in view and, so far as 
the court is informed by the public history of the relations of 
this country with that island, nothing has been done inconsistent 
with the declared object of the war with Spain. * * * 

It is true that as between Spain and the United States — indeed, 
as between the United States and all foreign nations — Cuba, upon 
the cessation of hostilities with Spain and after the treaty of 
Paris, was to be treated as if it were conquered territory. But 
as between the United States and Cuba that island is territory 
held in trust for the inhabitants of Cuba, to whom it rightfully 
belongs, and to whose exclusive control it will be surrendered 
when a stable government shall have been established by their 
voluntary action. (Neely v. Henkel, 180 U. S. 109 (1901).) 

In referring to President Roosevelt's proposition made 
in 1906 in regard to the adjustment of affairs in Morocco, 
through the Algeciras conference, Ambassador von Stern- 
burg, of Germany, said : 

This would place the police forces entirely into their hands, and 
the police organization would be tantamount to a Franco-Spanish 
double mandate and mean a monopoly of these two countries, 
which would heavily curtail the political and economic positions 



DISPOSAL OF GERMAN DEPENDENCIES 33 

of the other nations. (Theodore Roosevelt and His Time, Bishop, 
Vol. I, p. 492.) 

In the proposition made on behalf of the President 
annual reports by the Franco-Spanish authorities had 
been proposed and in the main the cost of administra- 
tion was to be borne by the area, the " open door " and 
equal opportunity for trade was likewise to be main- 
tained, and undue weight was not to be given to 
mere proximity of those to whom the " mandate " was 
intrusted. 

Negotiations on conquests, 1917. — There had been 
plans for disposal of German dependencies. The British 
ambassador's memorandum at Tokyo, February 16, 1917, 
says : 

His Majesty's Government accedes with pleasure to the request 
of the Japanese Government for assurance that they will support 
Japan's claims in regard to the disposal of Germany's rights in 
Shantung and possessions in islands north of the Equator on the 
occasion of the peace conference, it being understood that the 
Japanese Government will, in the eventual f)eace settlement, 
treat in the same spirit Great Britain's claims to German islands 
south of the Equator. (Baker, Woodrow Wilson, and the World 
Settlement, vol. 1, p. 61.) 

In contrast with the above, Lloyd George in the House 
of Commons on December 20, 1917, said : 

As to the German colonies, that is a matter that must be set- 
tled by the great international peace congress. 

Other documents, earlier than this, show that the idea 
of " agent or mandatory " was not foreign to political 
adjustments. It was distinguished from condominium, 
which might establish a joint title, while in the mandate 
there might be joint administration through the respon- 
sibility of making a report. 

World War and German overseas possessions. — The 
defeat of Germany in the World War left several mil- 
lion people who were formerly under German control 
outside of any established government, though under the 
military control of the allied powers. In Africa it was 



34 STATUS OF ISLAKDS Itf PACIFIC OCEAN 

estimated that there were 13,000,000, in Oceanica a few 
hundred thousand, and in Turkish areas there were sev- 
eral million. 

Article M. — The system of mandates is, in general, 
based upon article 22 of Part I of the Covenant of the 
League of Nations in the treaty of peace with Germany 
of June 28, 1918. This article is repeated in other 
treaties and is as follows : 

Art. 22. To those colonies and territories which as a conse- 
quence of the late war have ceased to be under the sovereignty 
of the states which formerly governed them and which are in- 
habited by peoples not yet able to stand by themselves under the 
strenuous conditions of the modern world, there should be applied 
the principle that the well-being and development of such peoples 
form a sacred trust of civilization and that securities for the per- 
formance of this trust should be embodied in this covenant. 

The best method of giving practical effect to this principle is 
that the tutelage of such peoples should be entrusted to advanced 
nations who by reason of their resources, their experience, or their 
geographical position can best undertake this responsibility and 
who are willing to accept it, and that this tutelage should be exer- 
cised by them as mandatories on behalf of the league. 

The character of the mandate must differ according to the 
stage of the development of the people, the geographical situation 
of the territory, its economic conditions, and other similar 
circumstances. 

Certain communities formerly belonging to the Turkish Empire 
have reached a stage of development where their existence as inde- 
pendent nations can be provisionally recognized subject to the 
rendering of administrative advice and assistance by a mandatory 
until such time as they are able to stand alone. The wishes of 
these communities must be a principal consideration in the 
selection of the mandatory. 

Other peoples, especially those of central Africa, are at such a 
stage that the mandatory must be responsible for the administra- 
tion of the territory under conditions which will guarantee free- 
dom of conscience and religion, subject only to the maintenance 
of public order and morals, the prohibition of abuses such as the 
slave trade, the arms traffic, and the liquor traffic, and the preven- 
tion of the establishment of fortifications or military and naval 
bases and of military training of the natives for other than police 
purposes and the defense of territory, and will also secure equal 



DISCUSSIONS, 1918 35 

opportunities for the trade and commerce of other members of the 
league. 

There are territories, such as southwest Africa and certain of 
the South Pacific islands, which, owing to the sparseness of their 
population, or their small size, or their remoteness from the 
centers of civilization, or their geographical contiguity to the terri- 
tory of the mandatory, and other circumstances, can be best 
administered under the laws of the mandatory as integral por- 
tions of its territory, subject to the safeguards above mentioned 
in the interests of the indigenous population. 

In every case of mandate the mandatory shall render to the 
council an annual report in reference to the territory committed 
to its charge. 

The degree of authority, control, or administration to be exer- 
cised by the mandatory shall, if not previously agreed upon by the 
members of the league, be explicitly defined in each case by the 
council. 

A permanent commission shall be constituted to receive and 
examine the annual reports of the mandatories and to advise the 
council on all matters relating to the observance of the mandates. 

Discussions in 1918. — On January 7, 1918, Premier 
Lloyd George stated in an address to the trades-unions, 
as one of the bases for peace discussions, that — 

Respecting the German colonies, they are held at the disposal 
of a conference whose decision must have primary regard to the 
wishes and interests of their native inhabitants. The governing 
consideration in all these cases must be that the inhabitants shall 
be placed under control of an administration acceptable to them- 
selves, one of whose main purposes will be to prevent their ex- 
ploitation for the benefit of European capitalists or governments. 

On Thursday, January 24, 1918, the German chancellor, 
Count Von Hertling, commented upon the British and 
American propositions. In December, 1917, Russia had 
suggested the consideration of the terms of peace. Count 
Von Hertling said : 

We at the time agreed to the proposal for inviting participators 
in the war' to the negotiations, with the condition, however, that 
this invitation should be limited to a clearly defined period. On 
January 4, at 10 o'clock in the evening, this period expired. No 
answer had been received. The result is that we are bound no 
longer in any way so far as the entente is concerned ; that we 
have a clear road in front of us for separate negotiations with 



36 STATUS OF ISLANDS IN PACIFIC OCEAN 

Russia, and also that, obviously, we are no longer bound in 
any way, as far as the entente is concerned, to the proposals for 
a general peace which have been submitted by the Russian dele- 
gation. Instead of the then anticipated reply which failed to come, 
two announcements have, as we all know, been made in the mean- 
time by enemy statesmen — the speech by the English prime min- 
ister, Mr. Lloyd George, of January 7, and the message of Presi- 
dent Wilson of the day after. 

Speaking of President Wilson's fifth point in regard 
to the disposal of the German colonies, Count Von Hert- 
ling said : 

The practical carrying out of the principle laid down by Mr. 
Wilson will in this world of realities meet with some difficulties. 
In any case, I believe that for the time being it may be left to 
the greatest colonial empire — England — to determine as to how 
she will come to terms with her allies regarding this proposal. 
We shall have to talk about this point of the program at the time 
of reconstruction of the colonial possessions of the world, which 
has also been demanded unconditionally by us. 

In President Wilson's reply of February 11, 1918, he 
stated four principles which he regarded as essential for 
peace : 

First, that each part of the final settlement must be based 
upon the essential justice of that particular case and upon such 
adjustments as are most likely to bring a peace that will be 
permanent ; 

Second, that peoples and provinces are not to be bartered 
about from sovereignty to sovereignty as if they were mere 
chattels and pawns in a game, even the great game, now forever 
discredited, of the balance of power ; but that — 

Third, every territorial settlement involved in this war must 
be made in the interest and for the benefit of the populations 
concerned and not as a part of any mere adjustment or compro- 
mise of claims amongst rival states; and 

Fourth, that all well-defined national aspirations shall be 
accorded the utmost satisfaction that can be accorded them with- 
out introducing new or perpetuating old elements of discord and 
antagonism that would be likely in time to break the peace of 
Europe and consequently of the world. 

In his Mount Vernon address on July 14, 1918, Presi- 
dent Wilson declared for — 



pkesident wilson's "fourteen points' 37 

The settlement of every question, whether of territory, of sov- 
ereignty, of economic arrangement, or of political relationship, 
upon the basis of the free acceptance of that settlement by the 
people immediately concerned and not upon the basis of the 
material interest or advantage of any other nation or people 
which may desire a different settlement for the sake of its own 
exterior influence or mastery. 

President Wilson's " Fourteen Points." — Germany ac- 
cepted the 14 points as set forth in President Wilson's ad- 
dress of January 8, 1918; and subsequent pronounce- 
ments in regard to the same as a basis for the restoration 
of peace, and on that ground agreed to an armistice 
November 11, 1918. The fifth of these points was as 
follows : 

A free, open-minded, and absolutely impartial adjustment of 
all colonial claims, based upon a strict observance of the principle 
that in determining all such questions of sovereignty the interests 
of the populations concerned must have equal weight with the 
equitable claims of the government whose title is to be determined. 

In drafting the terms of peace the disposition of the 
former dependencies of the German Empire was a matter 
of keen discussion. States that already had military 
possession of former German dependencies were inclined 
to regard these as just spoils of war. Claims to this 
effect were made particularly by representatives of the 
British Dominions and by France. Under President 
Wilson's arguments, however, the mandatory system was 
at length adopted. 

Mandatory system. — The report presented to the peace 
conference February 14, 1919, by President Wilson, con- 
tained as article 19 the plan for the mandates. This 
article in a somewhat changed form became article 22 of 
the Covenant of the League of Nations. In presenting 
this article with the report upon the League of Nations 
constitution on February 14, 1919, President Wilson said 
of the idea of the mandatory system : 

Then there is a feature about this covenant which, to my mind, 
is one of the greatest and most satisfactory advances that has 
been made. We are done with annexations of helpless people, 



38 STATUS OF ISLANDS IN PACIFIC OCEAN 

meant, in some instances by some powers, to be used merely for 
exploitation. We recognize in the most solemn manner that the 
helpless and undeveloped peoples of the world, being in that con- 
dition, put an obligation upon us to look after their interests 
primarily, before we use them for our interest, and that in all 
cases of this sort hereafter it shall be the duty of the league to 
see that the nations who are assigned as tutors and advisers and 
directors of these peoples shall look to their interests and their 
development before they look to the interests and desires of the 
mandatory nation itself. 

There has been no greater advance than this, gentlemen. If 
you look back upon the history of the world, you will see how 
helpless peoples have so often been a prey to powers that had no 
conscience in the matter. It has been one of the many distress- 
ing revelations of recent years that the great power which has 
just been, happily, defeated, put intolerable burdens and injustices 
upon the helpless people in some of the colonies which it an- 
nexed to itself, that its interest was rather their extermination 
than their development ; that the desire was to possess their 
land for European purposes, and not to enjoy their confidence in 
order that mankind might be lifted in these places to the next 
higher level. 

Now, the world, expressing its conscience in law, says there is 
an end to that, that our consciences shall be settled to this thing. 
States will be picked out which have already shown that they 
can exercise a conscience in this matter and under their tutelage 
the helpless peoples of the world will come into a new light and 
into a new hope. 

So I think I can say of this document that it is at one and the 
same time a practical document and a human document. There 
is a pulse of sympathy in it. There is a compulsion of conscience 
throughout it. It is practical, and yet it is intended to purify, to 
rectify, to elevate. 

And I want to say that, so far as my observation instructs me, 
this is in one sense a belated document. I believe that the con- 
science of the world has long been prepared to express itself in 
some way. We are not just now discovering our sympathy for 
these people and our interest in them. We are simply expressing 
it, for it has long been felt and in the administration of affairs 
of more than one of the great states represented here — so far as 
I know, all the great states that are represented here — that hu- 
mane impulse has already expressed itself in their dealings with 
their colonies, whose peoples were yet at a low stage of civili- 
sation. 



ALLOCATION OF MANDATES 39 

We have had many instances of colonies lifted into the sphere 
of complete self-government. This is not the discovery of a prin- 
ciple. It is the universal application of a principle. It is the 
agreement of the great nations which have tried to live by these 
standards in their separate administrations, to unite in seeing 
that their common force and their common thought and intelli- 
gence are lent to this great and humane enterprise. I think it is 
an occasion, therefore, for the most profound satisfaction that 
this humane decision should be reached in a matter for which the 
world has long been waiting and until a very recent period 
thought that it was still too early to hope. 

The delegates of the other great powers expressed their 
approbation of the interpretation which President Wil- 
son had put upon the Covenant. 

Allocation of mandates. — After the adoption of the 
Covenant of the League of Nations at the plenary session 
of the peace conference on April 28, 1919, an organiza- 
tion committee was authorized. 

On May 7, 1919, the day on which the treaty of Ver- 
sailles was handed to the German delegates, and directly 
thereafter, the supreme war council, on which the United 
States had a member, decided on the allocation of the 
mandates. This allocation was somewhat modified in the 
following August. The Germans had made certain coun- 
ter propositions in regard to article 22 after the treaty 
was handed to them but no changes were made. 

The treaty of peace was ratified January 10, 1920, and 
article 22 became operative. 

Title to German overseas possessions. — Under article 
119 of the treaty of Versailles — 

Germany renounces in favor of the principal allied and associ- 
ated powers all her rights and titles over her oversea possessions. 

Opinion of Mr. Balfour, 1920. — Mr. Balfour, as Lord 
president of the council and as having participated in 
the organization of the League of Nations, explained the 
negotiations in regard to mandates in a speech June 17, 
1920. He said : 

My recollection of what occurred in Paris is this : Germany, by 
the terms of the peace, was required to give up all her colonies 



40 STATUS OF ISLANDS IK PACIFIC OCEAN 

conquered by the Allies and to band them over, not to this or that 
country, and not to the League of Natior .j, but to the allied and 
associated powers. Having handed them over to the allied and 
associated powers those powers and the peace conference gen- 
erally agreed that a system of mandates should be adopted, in 
the main, with the view of seeing that the populations of those 
countries should not be used merely as subjects, but that their 
true interests should be looked after, and that they should be 
treated, not as mere spoils and booty of war but as communities 
for which the civilized world had responsibilities. That great end, 
and I hope it will prove one of the greatest ends attained by the 
pact, was to be obtained by mandates, but, according to my recol- 
lection, while the terms of the mandates were to be determined by 
the peace conference, the superintendence of the use to which 
those mandates were put was left to the League of Nations. That 
is my view of what was intended at Paris, and I believe that 
view to be absolutely correct. In those circumstances I think it is 
much to be regretted that the mandates are not ready yet, but I 
do not see that tbat is a matter for which the League of Nations 
can be blamed. I do not think anybody can be blamed. Every- 
body knows the negotiations have taken much longer than it was 
hoped or anticipated they would take. The League of Nations 
will come in when the mandatory powers have accepted the 
responsibilities of carrying out the mandates and will be required 
to tell the whole civilized world annually how it is they are 
carrying out the great trust which has been conveyed to them. 
Then the League of Nations will come in, and I hope they will 
do their duty. That is the general view which I take of the 
situation, and I believe it to be exactly in accordance with the 
facts. (130 H. C. Deb. 5s., 1554.) 

Statement of British Prime Minister, 1920. — Mr. Lloyd- 
George, June 22, 1920, in the House of Commons, spoke of 
the relation of the mandatory system : 

Then I would like at once to challenge the claim made by my 
right honorable friend that the League of Nations has got to dis- 
pose of these mandates. I do not accept that. It is not the view 
that was taken by any of the signatories to the treaty of Ver- 
sailles. It is not the view which was taken by President Wilson, 
who was the champion of the League, who had no interest — I do 
not, of course, mean personal interest- — but who had no particular 
interest even as representative of the United States in the distribu- 
tion of the German mandates. At Versailles we laid down the 
terms of the German treaty. We then met for the purpose of 



LLOYD GEORGE ON MANDATES 41 

distributing the mandates for the German territory with Presi- 
dent Wilson there. Under the German treaty the German colonies 
are handed over, not to the League of Nations but to the allied 
and associated powers. By the very terms of the treaty it is for 
them to decide who are the mandatories After all, the expense 
of emancipating these colonies fell upon the Allies. We took 
exactly the same line with regard to the Turkish treaty. Article 
94 says : 

" The determination of the other frontiers of the said states and 
the selection of the mandatories will be made by the principal 
allied powers." 

The principal allied powers met after that document had been 
prepared and decided what the mandates were. I repudiate en- 
tirely the suggestion that it is for the League of Nations to 
determine who shall be the mandatories of those countries. 

Does my right honorable friend mean to say that the League of 
Nations could meet and hand over the mandate for countries that 
cost us hundreds of millions to emancipate, like Mesopotamia and 
Palestine, to Germany? It would be an intolerable position, and 
we certainly could not accept it. No one ever contemplated it. 
I never heard that contention put forward by anyone until I 
heard it in this House, to my amazement, the other night. Presi- 
dent Wilson certainly never put it forward. He was present at 
the meeting where the allied and associate powers distributed 
the mandates under the German treaty. I take the same view 
about the Turkish mandates, that the allied and associated powers 
should determine who should be the mandatories. The terms of 
the mandate will be submitted to the League of Nations. That 
is another matter. The way in which the mandates are carried 
out will be discussed by the League of Nations. That is another 
matter. If there is any abuse of those terms, it will be for the 
League of Nations to consider it. If the natives are oppressed by 
a mandatory, if an unfair use is made of the powers of a par- 
ticular mandatory, then the League of Nations may operate ; but 
it is for the allied and associated powers, who have emancipated 
these territories, to determine who the mandatory should be, and 
that has been done. (130 H. C. Deb. 5s., 2256.) 

In a memorandum of the secretary-general of the 
League of Nations presented to the council on July 30, 
1920, it was stated : 

6. (a) A legal title to the necessary rights of authority and 
administration must be conferred on the respective mandatory 
powers by the principal allied and associated powers, in whom the 

9855—31 -4 



42 STATUS OF ISLANDS IN PACIFIC OCEAN 

title to these territories is at present vested. (Assembly Docu- 
ment 161, p. 10.) 

On March 1, 1921, in reply to a letter of the Secretary 

of State of the United States of February 21, 1921, the 

League of Nations Council said : 

The League of Nations Council would remind your excellency 
that the allocation of the mandated territories is a function of 
the supreme council and not of the council of the league. 

Mandated areas. — Pacific islands under mandates are 
as follows: 

Islands Mandatory 

Samoa (German) New Zealand. 

Nauru British Empire. 

Other former German Pacific islands south of 

Equator Australia. 

Former German Pacific islands north of Equator_ Japan. 

These mandates were confirmed December 17, 1920, and 
are usually called class C mandates and are in accordance 
Avith article 22, paragraph 6, of the Covenant of the 
League of Nations. 

German overseas territory under peace treaty. — Article 
118 of the treaty of Versailles, June 24, 1919, which came 
into effect January 10, 1920, provides : 

In territory outside her European frontiers as fixed by the 
present treaty, Germany renounces all rights, titles, and privileges 
whatever in or over territory which belonged to her or to her 
allies, and all rights, titles, and privileges whatever their origin 
which she held as against the allied and associated powers. 

Germany hereby undertakes to recognize and to conform to 
the measures which may be taken now or in the future by the 
principal allied and associated powers, in agreement where neces- 
sary with third powers, in order to carry the above stipulation 
into effect. 

In particular, Germany declares her acceptance of the follow- 
ing articles relating to certain special subjects. 

In article 119 it was said: 

Germany renounces in favour of the principal allied and asso- 
ciated powers all her rights and titles over her oversea possessions. 



TREATY PROVISION'S 43 

Articles 120-127 enumerate special provisions, and 
article 120 refers to article 257, as follows: 

All movable and immovable property in such territories belong- 
ing to the German Empire or to any German State shall pass 
to the Government exercising authority over such territories, on 
the terms laid down in article 257 of Part IX (financial clauses) 
of the present treaty. The decision of the local courts in any 
dispute as to the nature of such property shall be final. 

In article 120 it is evident that as the treaty constituted 
a whole, Germany's right and title was intended to pass 
to the principal allied and associated powers with the 
purpose that some government should exercise authority 
over the territories under the terms of article 257, which 
provided that — 

In the case of the former German territories, including colonies, 
protectorates, or dependencies, administered by a mandatory 
under article 22 of Part I (League of Nations) of the present 
treaty, neither the territory nor the mandatory power shall be 
charged with any portion of the debt of the German Empire or 
States. 

All property and possessions belonging to the German Empire 
or to the German States situated in such territories shall be 
transferred with the territories to the mandatory power in its 
capacity as such, and no payment shall be made nor any credit 
given to those governments in consideration of this transfer. 

For the purposes of this article the property and possessions 
of the German Empire and of the German States shall be deemed 
to include all the property of the Crown, the Empire, or the 
States, and the private property of the former German Emperor 
and other royal personages. 

The mandatory power received, therefore, the German 
public property rights, though from an interpretation 
adopted by the mandates commission at its fourth session, 
Geneva, June 24— July 8, 1924, it was indicated that the 
mandatory authority was administrative. 

The mandatory powers do not possess, in virtue of articles 120 
and 257 (par. 2) of the treaty of Versailles, any right over any 
part of the territory under mandate other than that resulting 
from their having been intrusted with the administration of the 
territory. If any legislative enactment relating to land tenure 



44 STATUS OF ISLANDS IN PACIFIC OCEAN 

should lead to conclusions contrary to these principles, it would 
he desirable that the text should be modified in order not to 
allow of any doubt. 

By article 127 : 

The native inhabitants of the former German overseas posses- 
sions shall be entitled to the diplomatic protection of the govern- 
ments exercising authority over those territories. 

As allegiance is the natural corollary to the right of 
protection, both territory and native population come 
under the mandatory and under limitations of the terms 
of the mandate, the mandatory authority succeeds to that 
of Germany. 

Thus, as a result of the World War and the negotia- 
tions following, it became evident that certain territories 
formerly belonging to or under the control of Germany, 
could no longer be retained; they could not be ceded to 
any of the victors in the war; there was no inclination 
to establish joint jurisdiction; the League of Nations was 
not organized to assume jurisdiction ; the welfare of the 
former German possessions was of general interest; and 
the trust idea under a mandate seemed most acceptable. 

The mandate system is now a fact. Into what it may 
merge is problematical. 

The basis for a valid mandate would seem to rest on 
(1) power of the grantor, i. e., allied and associated 
powers; (2) allocation by these powers; (3) acceptance 
by the mandatory; and (4) approval by the League of 
Nations Council. 

Apparently agreement between the council and manda- 
tory may amend or modify the terms of the mandate. 

Further, a mandate of class A may terminate by the 
recognition of the independence of the mandate, or by 
entrance of the mandate into the League of Nations as 
a member, or by agreement by the League of Nations 
Council and the mandatory. 

As the agreement is a bilateral one, it is questionable 
whether it can be terminated by one of the parties with- 
out the consent of the other. 



STATUS OF MANDATES 45 

Apparently the United States would have no legal 
concern with mandates of class A, as the United States 
was not at war with Turkey. In some of the correspond- 
ence, however, the United States has assumed rights in 
regard to these mandates. 

Status of mandates. — Sovereignty was not granted to 
the mandatory power. Sovereignty or any other funda- 
mental state attribute is never transferred except by 
express stipulation. The exercise of sovereign rights may 
be permitted without the transfer of sovereignty. 

Jurisdiction, as the right to exercise state authority, is 
frequently granted to a state within the territory of 
another state, even when sovereignty is not transferred. 
In some instances bare sovereignty only seems to be re- 
tained by the grantor, e. g., in some leased territory. The 
administration of an area may be as if by a sovereign 
power when sovereignty does not exist in the admin- 
istrator. 

In case of mandated areas the hope was to avoid the 
award of spoils of war in the ancient sense. If sover- 
eignty was granted to the mandatory, there would have 
been no reason for a mandate, and if a state was sover- 
eign, there could be no obligation to make annual reports 
in regard to the administration or to act in accord with 
the mandate. Sovereignty implies absence of accounta- 
bility to an outside authority. 

In case of mandated areas mandatories have only a 
qualified jurisdiction which they have agreed to exercise 
under certain restrictions. They have received a kind of 
administrative trust. Mandated areas may be the source 
of valuable or essential war supplies. The areas are iden- 
tified with the mandatory administratively and to that 
extent are regarded as integral parts of the mandatory's 
territory and therefore, in absence of other agreement, 
they become liable to the same treatment as the territory 
of the mandate in the time of war. 

The German right and title to the mandated areas was 
transferred to the principal allied and associated powers 



46 STATUS OF ISLANDS IN PACIFIC OCEAN 

by article 119 and apparently remains there till lawfully 
transferred elsewhere. 

The United States, participating in the acts of the 
supreme war council, agreed in allocating the mandates 
of 1919, but did not ratify the treaty of Versailles in 
article 22 of which provision was made in regard to the 
administration of the mandates. 

The right to exercise certain specified jurisdictional 
powers under specified conditions has been conferred 
upon the mandatories. This right does not give the 
powers entrusted with the mandates authority to transfer 
the mandates, as would be the case if sovereignty had 
been granted, even from one subdivision to another sub- 
division of a state having within its entity several politi- 
cal unities. This may be seen in the report of the sixth 
committee (mandates) to the assembly of the League of 
Nations, September 16, 1922, in which it was said : 

With regard to the Nauru mandate dealt with in Part II of 
the report of the permanent mandates commission, the sixth com- 
mittee deems it advisable to prevent possible misinterpretation by 
taking note : 

First, that the British Empire (the unit responsible for the 
Nauru mandate) consists of Great Britain together with a num- 
ber of territories all owing a common allegiance but distinct in 
their respective powers of government, and the mandatory author- 
ity of the British Empire can therefore only be exercised by some 
one or more of the several Governments of the territories com- 
posing the Empire. If, for the statement in the report that the 
British Empire " had transferred the responsibility for the admin- 
istration of the Island of Nauru to Great Britain, Australia, and 
New Zealand/' there were substituted a statement that " the 
British Empire had provided for the administration of the Island 
of Nauru by Great Britain, Australia, and New Zealand," the 
position would be defined with greater precision and exactitude. 

Secondly, that the statement in the report that the governments 
of Great Britain, Australia, and New Zealand had reserved to 
themselves the exclusive rights of the administration of the rich 
deposits of phosphates which constitute the wealth of the island 
is capable of misinterpretation without the explanation that the 
three governments acquired by direct purchase through voluntary 
sale on the part of the owners and not through the mandate ex- 



NEUTRALIZATION 47 

elusive rights granted b?fcre the war by the German Government 
to a private company. 

Neutralization. — Neutralization of mandated areas has 
been proposed and neutralization of the Pacific islands 
was at one time considered at the Conference on the Limi- 
tation of Armament, 1921-22. Neutralization would, if 
observed, restrict all powers alike from any war use of 
the mandated areas, giving them a quasi international 
status. This plan has not been approved. The Pacific 
islands have been placed under mandates, thus giving 
them a qualified national status as integral parts of the 
territory of mandatory. 

While there has been discussion as to the neutralization 
of mandates, the terms of some of the mandates do not 
seem to indicate that neutralization or even neutrality 
when the mandatory might be at war was contemplated. 
The mandate respecting Syria and Lebanon, to which 
by special convention of 1924 France consented, provided 
in article 2 that — 

The mandatory may maintain its troops in the said territory 
for its defense. It shall further be empowered, until the entry 
into force of the organic law and the reestablishment of public 
security, to organize such local militia as may be necessary for 
the defense of the territory, and to employ this militia for defense 
and also for the maintenance of order. These local forces may 
only be recruited from the inhabitants of the said territory. 

The said militia shall thereafter be under the local authorities, 
subject to the authority and the control which the mandatory shall 
retain over these forces. It shall not be used for purposes other 
than those above specified save with the consent of the mandatory. 

Nothing shall preclude Syria and the Lebanon from contributing 
to the cost of the maintenance of the forces of the mandatory 
stationed in the territory. 

The mandatory shall at all times possess the right to make use 
of the ports, railways, and means of communication of Syria and 
the Lebanon for the passage of its troops and of all materials, 
supplies and fuel. (1924 N. W. C. Int. Law Documents, 62.) 

The consent of the Council of the League of Nations 
and the assent of the United States is required for any 
modification of the terms of the mandate. 



48 STATUS OF ISLANDS IN PACIFIC OCEAN 

From the terms of this mandate respecting Syria and 
Lebanon it is clear that passage of troops and the use of 
the territory for military purposes is permitted, which 
would scarcely be consistent with a status of neutrality. 

The mandates for islands in the Pacific provide that — 

The mandatory shall have full power of administration and 
legislation over the territory subject to the present mandate as 
an integral portion of his territory. (Art. 2, 1924, N. W. C. Int. 
Law Documents, p. 81.) 

and that — 

The military training of the natives, otherwise than for pur- 
poses of international police and the local defense of the territory, 
shall be prohibited. Furthermore, no militia or naval bases shall 
be established or fortification erected in the territory. (Art. 4, 
ibid. ) 

Manifestly, this is not a neutralization agreement, nor 
does it establish neutrality of the mandated area if the 
mandatory is at war. As the mandatory may administer 
the mandate as an integral part of his territory, subject 
to the restrictions as to militar}^ training of the natives, 
etc., it would have the same status. Other areas in the 
Pacific Ocean are under restriction as to fortifications, 
etc., by Article XIX of the treaty limiting naval arma- 
ment, but such articles are limited to their specific pro- 
visions and carry no further implications. 

Terms of mandates. — The terms of the island mandates 
are in general similar to those shown by the mandates for 
islands south and north of the Equator. 

{Letter from the secretary-general to the members of the League 
concerning the terms of C mandates] 

[League of Nations Official Journal, January-February, 1921] 

Geneva, January 15, 1921. 
Sie : I have the honour to inform you that the Council of the 
League of Nations, at its meeting at Geneva on December 17, 
under the presidency of His Excellency M. Hymans, settled the 
terms of the following mandates in conformity with article 22, 
paragraph 6, of the covenant : 



MANDATE PROVISIONS 49 

The mandates in question are the British mandates in respect 
of the following territories : 

(1) The mandate for German Southwest Africa, which is con- 
ferred upon His Britannic Majesty, to be exercised on his behalf 
by the Government of the Union of South Africa. 1 

(2) The mandate for German Samoa, which is conferred upon 
His Britannic Majesty, to be exercised on his behalf by the Gov- 
ernment of the Dominion of New Zealand. 1 

(3) The mandate for the Island of Nauru, which is conferred 
upon His Britannic Majesty. 1 

(4) The mandate for the German possessions, other than Ger- 
man Samoa and Nauru, situated in the Pacific Ocean to the south 
of the Equator, which is conferred upon His Britannic Majesty, 
to be exercised on his behalf by the Government of the Common- 
wealth of Australia ; and the Japanese mandate in respect of the 
German possessions to the north of the Equator, which is con- 
ferred upon His Majesty the Emperor of Japan. 

I have the honor to transmit the attached text of these man- 
dates, together with a declaration by the Japanese Government. 
I am, sir, your most obedient servant, 

Eric Drummond, 
Secretary-General. 

Mandate fob the German Possessions in the Pacific Ocean 
Situated South of the Equator, other than German Samoa 
and Nauru 

The Council of the League of Nations: 

Whereas by article 119 of the treaty of peace with Germany 
signed at Versailles on June 28, 1919, Germany renounced in 
favor of the principal allied and associated powers all her rights 
over her oversea possessions, including therein German New 
Guinea and the groups of islands in the Pacific Ocean lying south 
of the Equator other than German Samoa and Nauru ; and 

Whereas the principal allied and associated powers agreed that 
in accordance with article 22, Part I (Covenant of the League of 
Nations) of the said treaty, a mandate should be conferred upon 
His Britannic Majesty to be exercised on his behalf by the Gov- 
ernment of the Commonweal th of Australia to administer New 
Guinea and the said islands, and have proposed that the man- 
date should be formulated in the following terms ; and 

Whereas His Britannic Majesty, for and on behalf of the Gov- 
ernment of the Commonwealth of Australia, has agreed to ac- 
cept the mandate in respect of the said territory and has under- 

1 Not printed. 



50 STATUS OF ISLANDS IN PACIFIC OCEAN 

taken to exercise it on behalf of the League of Nations in accord- 
ance with the following provisions ; and 

Whereas by the aforementioned article 22, paragraph 8, it is 
provided that the degree of authority, control, or administration 
to be exercised by the mandatory not having been previously 
agreed upon by the members of the League, shall be explicitly de- 
fined by the Council of the League of Nations; 

Confirming the said mandate, defines its terms as follows : 

ARTICLE 1 

The territory over which a mandate is conferred upon His 
Britannic Majesty for and on behalf of the Government of the 
Commonwealth of Australia (hereinafter called the mandatory) 
comprises the former German colony of New Guinea and the for- 
mer German islands of the Pacific Ocean and lying south of the 
Equator, other than the islands of the Samoan Group and the 
island of Nauru. - 

ARTICLE 2 

The mandatory shall have full power of administration and 
legislation over the territory subject to the present mandate as 
an integral portion of the Commonwealth of Australia, and may 
apply the laws of the Commonwealth of Australia to the terri- 
tory, subject to such local modifications as circumstances may 
require. 

The mandatory shall promote to the utmost the material and 
moral well-being and the social progress of the inhabitants of the 
territory subject to the present mandate. 

. ARTICLE 3 

The mandatory shall see that the slave trade is prohibited and 
that no forced labor is permitted, except for essential public works 
and services, and then only for adequate remuneration. 

The mandatory shall also see that the traffic in arms and am- 
munition is controlled in accordance with principles analogous to 
those laid down in the convention relating to the control of the 
arms traffic signed on September 10, 1919, or in any convention 
amending the same. 

The supply of intoxicating spirits and beverages to the natives 
shall be prohibited. 

ARTICLE 4 

The military training of the natives, otherwise than for pur- 
poses of internal police and the local defense of the territory, 



MANDATE PROVISIONS 51 

shall be prohibited. Furthermore, no military or naval bases shall 
be established or fortifications erected in the territory. 

ARTICLE 5 

Subject to the provisions of any local law for the maintenance 
of public order and public morals, the mandatory shall insure 
in the territory freedom of conscience and the free exercise of all 
forms of worship, and shall allow all missionaries, nationals of 
any state member of the League of Nations, to enter into, travel, 
and reside in the territory for the purpose of prosecuting their 
calling. 

ARTICLE 6 

The mandatory shall make to the Council of the League of 
Nations an annual report to the satisfaction of the council con- 
taining full information with regard to the territory and indi- 
cating the measures taken to carry out the obligations assumed 
under articles 2, 3, 4, and 5. 

ARTICLE 7 

The consent of the Council of the League of Nations is required 
for any modification of the terms of the present mandate. 

The mandatory agrees that if any dispute whatever should arise 
between the mandatory and another member of the League of 
Nations relating to the interpretation or the application of the 
provisions of the mandate such dispute, if it can not be settled 
by negotiations, shall be submitted to the Permanent Court of 
International Justice provided for by article 14 of the Covenant 
of the League of Nations. 

The present declarations shall be deposited in the archives of 
the League of Nations. Certified copies shall be forwarded by 
the secretary-general of the League of Nations to all powers 
signatories of the treaty of peace with Germany. 

Certified true copy. 

Secretary-General. 

Made at Geneva the 17th day of December, 1920. 



Mandate for the Former German Possessions in the Pacific 
Ocean Lying North of the Equator 

The Council of the League of Nations: 

Whereas by article 119 of the treaty of peace with Germany 
signed at Versailles on June 28', 1919, Germany renounced in 



52 STATUS OP ISLANDS IN" PACIFIC OCEAN 

favor of the principal allied and associated powers all her rights 
over her oversea possessions, including therein the groups of 
islands in the Pacific Ocean lying north of the Equator ; and 

Whereas the principal allied and associated powers agreed that 
in accordance with article 22, Part I (Covenant of the League of 
Nations) of the said treaty a mandate should be conferred upon 
His Majesty the Emperor of Japan to administer the said islands, 
and have proposed that the mandate should be formulated in the 
following terms ; and 

Whereas His Majesty the Emperor of Japan has agreed to 
accept the mandate in respect of the said islands and has under- 
taken to exercise it on behalf of the League of Nations in accord- 
ance with the following provisions ; and 

Whereas by the aforementioned article 22, paragraph 8, it is 
provided that the degree of authority, control, or administration 
to be exercised by the mandatory, not having been previously 
agreed upon by the members of the League, shall be explicitly 
defined by the Council of the League of Nations. 

Confirming the said mandate, defines its terms as follows : 

ARTICLE 1 

The islands over which a mandate is conferred upon His 
Majesty the Emperor of Japan (hereinafter called the manda- 
tory) comprise all the former German islands situated in the 
Pacific Ocean and lying north of the Equator. 

ARTICLE 2 

The mandatory shall have full power of administration and 
legislation over the territory subject to the present mandate as 
an integral portion of the Empire of Japan, and may apply the 
laws of the Empire of Japan to the territory, subject to such local 
modifications as circumstances may require. 

The mandatory shall promote to the utmost the material and 
moral well-being and the social progress of the inhabitants of 
the territory subject to the present mandate. 

ARTICLE 3 

The mandatory shall see that the slave trade is prohibited and 
that no forced labor is permitted, except for essential public works 
and services, and then only for adequate remuneration. 

The mandatory shall also see that the traffic in arms and 
ammunition is controlled in accordance with principles analogous 
ro those laid down in the convention relating to the control of 



MANDATE PROVISIONS 53 

the arms traffic, signed on September 10, 1919, or in any con- 
vention amending same. 

The supply of intoxicating spirits and beverages to the natives 
shall be prohibited. 

ARTICLE 4 

The military training of the natives, otherwise than for pur- 
poses of internal police and the local defense of the territory, shall 
be prohibited. Furthermore, no military or naval bases shall be 
established or fortifications erected in the territory. 

ARTICLE 5 

Subject to the provisions of any local law for the maintenance 
of public order and public morals, the mandatory shall insure in 
the territory freedom of conscience and the free exercise of all 
forms of worship, and shall allow all missionaries, nationals of 
any state member of the League of Nations, to enter into, travel, 
and reside in the territory for the purpose of prosecuting their 
calling. 

ARTICLE G 

The mandatory shall make to the Council of the League of 
Nations an annual report to the satisfaction of the council, con- 
taining full information with regard to the territory, and indicat- 
ing measures taken to carry out the obligations assumed under 
articles 2, 3, 4, and 5. 

ARTICLE 7 

The consent of the Council of the League of Nations is required 
for any modification of the terms of the present mandate. 

The mandatory agrees that if any dispute whatever should arise 
between the mandatory and another member of the League of 
Nations relating to the interpretation or the application of the 
provisions of the mandate, such dispute, if it can not be settled 
by negotiation, shall be submitted to the Permanent Court of 
International Justice provided for by article 14 of the covenant 
of the League of Nations. 

The present declaration shall be deposited in the archives of 
the League of Nations. Certified copies shall be forwarded by 
the secretary-general of the League of Nations to all powers 
signatories of the treaty of peace with Germany. 

Made at Geneva the 17th of December, 1920. 

Exactly what control the League of Nations may have 
in every instance is left somewhat in doubt through the 



54 STATUS OF ISLANDS IN" PACIFIC OCEAN 

difficulty of interpreting the clause of article 22, which 
provides : 

The degree of authority, control, or administration to be exer- 
cised by the mandatory shall, if not previously agreed upon by the 
members of the League, be explicitly defined in each case by the 
council. 

In any case, however, the council is to be advised " on 
all matters relating to observance of the mandate," and is 
to receive an annual' report in reference to the territory 
committed to the mandatory. 

Period of mandate. — On concluding a chapter on 
League of Nations mandates, M. F. Lindley says : 

We have seen that there appears to exist no power to revoke a 
mandate against the will of the mandatory. Nor, it would seem, 
can a mandatory relinquish its mandate without the consent of 
the Council of the League. A mandatory which, without such con- 
sent, laid down its task, or which failed to carry out its mandate 
according to the terms thereof, would thereby commit a breach of 
the undertaking it has given to the other members of the League, 
and would be in the position of a treaty-breaking or law-breaking 
state. * * * 

But while the consensus of the council and the mandatory would 
appear to be sufficient to terminate a particular mandate, it does 
not necessarily follow that such a consensus would be sufficient 
to release a country under mandate from the mandatory system 
altogether. * * * 

In the case of A mandate countries, " Their existence as inde- 
pendent nations " is " provisionally recognized " in Article 22 of 
the covenant, " subject to the rendering of administrative advice 
and assistance by a mandatory until such time as they are able 
to stand alone " ; and it may be that, in those cases, not only a 
particular mandate, but the application of the mandatory system 
altogether, could be terminated by agreement between the council 
and the mandatory ; or by the admission of the mandated coun- 
try to the League, with the assent of the mandatory, as is contem- 
plated in the case of Iraq.. And even without the assent of the 
mandatory, a two-thirds vote of the assembly admitting an A 
mandate country to membership of the league under Section I of 
the covenant would appear to amount to a declaration that, In 
the opinion of the majority of the assembly, the mandated country 
had reached a condition in which it was " able to stand alone," 
and therefore might claim to dispense with the administrative 
advice and assistance of the mandatory. 



SOTJKCE OF AUTHOEITY 55 

In the case of B mandate and C mandate territory, however, 
article 22 does not appear to contemplate the termination of the 
status of " territory under mandate." Any change in that status 
would thus probably require to be made in the manner laid down 
in article 26 for making amendments to the covenant, and perhaps 
also with the consent of the United States. (The Acquisition and 
Government of Backward Territory in International Law, M. F. 
Lindley, 268.) 

Source of authority. — Some have maintained that ar- 
ticle 119 of the treaty of Versailles by which " Germany 
renounces in favor of the principal allied and associated 
powers all her rights and titles over her overseas pos- 
sessions," did not relinquish sovereignty over these pos- 
sessions. This would seem not to need much discussion 
as regards mandated areas because these are according to 
article 22 of the treaty " those colonies and territories 
which as a consequence of the late war have ceased to be 
under the sovereignty of the states which formerly gov- 
erned them," and of their inhabitants this article pro- 
vides " that the well-being and development of such peo- 
ples form a sacred trust of civilization." The best 
method of giving practical effect to this principle is that 
tutelage of such peoples should be intrusted to advanced 
nations. This allocation of the trust could be made only 
by the principal allied and associated powers, and article 
22 further provides that for the states willing to accept 
it, " this tutelage should be exercised by them as manda- 
tories on behalf of the League." 

The introduction of the principle of mandates as is 
evident from the discussions in drawing up article 22 
was to do away as regards these areas with the earlier 
practice of annexations by victors of territories of their 
enemies. It was considered, nevertheless, that some of 
these could "be best administered under the laws of the 
mandatory as integral portions of its territory," and an- 
nual reports of the administration were to be made as 
might be required in other trusts. 

In subsequent interpretations it was shown that the 
natives of mandated territories did not acquire the na- 



56 STATUS OF ISLANDS IN PACIFIC OCEAN 

tionality of the mandatory but might by individual act 
acquire such nationality in accord with the law of the 
mandatory. Frontiers and boundaries were fixed and 
terms of administrative control were determined. 

From article 22 it is clear that the territories allocated 
to the mandatories "have ceased to be under the sover- 
eignty of the states which formerly governed them." It 
is equally clear that the mandatories are exercising only 
a tutelage on behalf of the League. The allocation was 
made by the powers to which the territories had passed 
by articles 118 and 119. The C mandates do not become 
a part of but may be administered as " integral portions 
of " the territory of a mandatory. 

General observations. — While mandates of class A and 
class B might be considered important, those of class C 
have particularly given rise to many questions as to 
status. The class C mandates are those portions of the 
former German possessions which in Southwest Africa 
and in the Pacific area passed to the .principal allied and 
associated powers by article 119 of the treaty of Ver- 
sailles of June 28, 1919. The institution of the mandates 
system was an attempt to put an end to the distribution 
of territory among the victors as spoils of war. The peo- 
ples of the mandated regions were regarded as " not yet 
able to stand by themselves under the strenuous condi- 
tions of the modern world." It was hoped that through 
a period of tutelage these peoples would develop capacity 
for government. In order that there might be assured 
to these peoples approved care, annual reports were to 
be made to the Council of the League of Nations. 

Claims have been made for several persons as origina- 
tors of the mandate system. The idea antedates 1919 
and the proposition that there should be collective re- 
sponsibility for the care of the backward races was not 
new. The establishment of the permanent mandates 
commission brought about a degree of centralized super- 
vision over the mandates and more important than the 



MANDATE PLAN" 57 

supervision, a source from which information as to the 
administration of backward areas might be gained. 
The mandates commission early realized that the tender- 
ing of advice rather than criticism would be sound policy 
in promoting the well being of the mandates. 

As the years have passed, it has become more and more 
evident that the grant of a mandate is not a veiled an- 
nexation as was anticipated by some. It must be ad- 
mitted, however, that the exact legal status of a mandated 
territory is not easily placed under preexisting categories 
and that there are wide differences of opinion as to the 
category under which the exercise of authority by the 
mandatory should be considered. Some even maintain 
that the mandatory relationship is a new international 
category. 

One of the striking features of the mandatory systems 
is the fact that mandated areas were granted to political 
entities previously having no colonial dependencies in the 
technical sense as in the case of the grant of southwest 
Africa to the Union of South Africa. 

The terms of the class C mandates are fairly uniform 
usually prescribing more care for the natives of the man- 
datory area than seems to have been anticipated in the 
Covenant of the League of Nations. 

General marndate plan. — Article 22 recognizes in class 
A certain " communities " in Turkey, in class B " peo- 
ples " in central Africa, in class C " territories " in south- 
west Africa and in the Pacific islands. 

In this article 22 there is no stated intention to revoke 
or terminate a mandate. 

There have been various queries as to whether perma- 
nent retention would be implied even at a cost to the 
power intrusted with the mandate. The mandates com- 
mission has promised that the mandates may be made 
to bear the cost of their administration only. In case 
there is a surplus income from the mandate, this surplus 
is supposed to be used for the benefit of the mandate. 

9855—31 5 



58 STATUS OF ISLANDS IN PACIFIC OCEAN 

The principle of the open door has been generally as- 
serted for all mandates, and consequently the special 
advantages for holding mandates are correspondingly 
fewer. 

International control in some form was necessary in 
order to meet the expectations that had been aroused by 
the statement of high ideals and unselfish motives made 
by leaders during the war. 

The plan for some form of trusteeship for dependent 
peoples had been discussed, and met with favor from 
many quarters. General Smuts had elaborated plans 
along this line. The establishment of such trusteeship 
would make unnecessary the usual contentions for col- 
onies in after-war settlement. 

Japanese attitude. — Declaration by the Japanese Gov- 
ernment relating to C mandates. 

[Read by Viscount Ishii at the meeting of the council, December 17, 1920] 

From the fundamental spirit of the League of Nations and as 
the question of interpretation of the covenant, His Imperial 
Japanese Majesty's Government have a firm conviction of the 
justice of the claim they have hitherto made for the inclusion 
of a clause concerning the assurance of equal opportunities for 
trade and commerce in C mandates. But from the spirit of con- 
ciliation and cooperation and their reluctance to see the question 
unsettled any longer, they have decided to agree to the issue of 
the mandate in its present form. That decision, however, should 
not be considered as an acquiescence on the part of His Imperial 
Majesty's Japanese Government in the submission of Japanese 
subjects to a discriminatory and disadvantageous treatment in the 
mandated territories ; nor have they thereby discarded their claim 
that the rights and interests enjoyed by Japanese subjects in these 
territories in the past should be fully respected. 

Opinion of Keith. — Keith (War Government of the 
British Dominions, 1921), referring to the islands in the 
Southern Pacific under British mandate, said of New 
Guinea : 

The chief point on which a commission of three, including the 
Lieutenant Governor of Papua, set up to advise as to the forms 
of administration, differed was whether the territory should be 



OPINION OF KEITH 59 

administered as a part of or in subordination to Papua, as recom- 
mended by the lieutenant governor, or as an independent unit, on 
the same basis as Papua. 

The final form of the legislation determined upon by the Gov- 
ernment and presented to Parliament in August, 1920, adopts the 
plan of treating the German territories surrendered by the treaty 
of peace as a single unit, to be known as the territory of New 
Guinea, and the act gives power to the Governor General to accept 
the mandate for these territories when issued under the Covenant 
of the League of Nations (pp. 182-183). 

And Keith further said : 

The provisions thus enacted represent precisely the existing 
state of the law respecting Papua, save in so far as the necessity 
of a report to the league is concerned, and demonstrate how little 
difficulty there was in applying the system of the covenant to the 
new territory. 

For New Zealand the Samoan mandate involved much more 
serious difficulties. The power of the Dominion to legislate for 
Samoa without imperial authority was held to be doubtful, and 
in accordance with this view the issue of an imperial order in 
council was procured on March 11, 1920, authorizing the Dominion 
Parliament to legislate for Samoa, and pending such legislation, 
conferring authority on the Dominion Government to legislate, 
subject to the terms of the treaty of peace. In the meantime the 
New Zealand Parliament had passed an act in 1919 to provide 
for the acceptance of the mandate for Samoa and the approval 
of the issue of orders in council by the Government respecting the 
administration of the islands. It was then explained in the House 
of Representatives on October 17, 1919, that it had been desired 
to lay before the legislature a bill defining precisely the govern- 
ment of the islands, but this was rendered impossible by the delay 
in the issue of the mandate, whose terms could not definitely be 
defined before the ratification of the peace with Germany, and 
the constitution would, therefore, be determined later by order in 
council. There was a marked divergence between the act of 1919 
and the imperial order in council regarding the source whence 
the mandate would be derived; the former measure treated the 
mandate as conferred on the King in right of his Dominion of 
New Zealand by the League of Nations; the latter, conforming 
precisely to the terms of the treaty of peace, recognized that 
while the mandate was granted according to the covenant of the 
League of Nations, it was accorded by the principal allied and 
associated powers, to which, and not to the league, the German 
territories were surrendered by the peace treaty. ("Art. 119.) 



60 STATUS OF ISLANDS IN PACIFIC OCEAN 

The actual constitution for the islands of western Samoa is laid 
down in the Samoa constitution order, 1920, which is based on the 
authority given by the Dominion act of 1919 and "the imperial 
order in council of 1920. By it the government of Samoa is 
vested in the King, as if the territory were part of his domin- 
ions, and is to be carried on, subject to the control of the Min- 
ister of External Affairs of New Zealand, by an administrator, 
(pp. 184-185.) 

Mention was made by Sir Francis Bell in the Legislative Coun- 
cil of the fact that the terms of the proposed mandate contained 
an arrangement for the incorporation of the islands in New 
Zealand if at any time the natives showed a desire to be annexed 
to the Dominion and the allied and associated powers considered 
this- desire to be deliberate and well founded. No such clause, 
however, appears in the mandate as approved by the council of 
the league on December 17, 1920 (p. 187). 

In the case of the Nauru Island mandate, question has 
been raised both within Great Britain and outside as to 
the maintenance of the open door since the exploitation 
of the phosphate of the island by the United Kingdom 
and the Pacific commonwealths. The agreement on this 
matter was confirmed by Parliament July 29, 1920, " sub- 
ject to article 22 of the covenant of the League of 
Nations." 

Central Africa. — The mandates for central Africa de- 
clared that — 

The mandatory shall have full powers of administration and 
legislation in the area subject to the mandate. This area shall 
be administered in accordance with the laws of the mandatory 
as an integral part of his territory and subject to the above 
provisions. 

The mandatory shall, therefore, be at liberty to apply his laws 
to the territory subject to the mandate, with such modifications 
as may be required by local conditions, and to constitute the 
territory into a customs, fiscal, or administrative union or federa- 
tion with the a*djacent territories under his sovereignty or control, 
provided always that the measures adopted to that end do not in- 
fringe the provisions of this mandate. (Art. 9.) 

Article 3 of the French mandates provided : 

The mandatory shall not establish in the territory any military 
or naval bases, nor erect any fortifications, nor organize any 



STATUS OF MANDATES 61 

native military force except for local police purposes and for the 
defense of the territory. 

It is understood, however, that the troops thus raised may in 
the event of general war be utilized to repel an attack or for 
the defense of the territory outside that subject to the mandate. 

Article 4 of the Belgian mandate provided : 

The mandatory shall not establish any military or naval bases, 
nor erect any fortifications, nor organize any native military force 
in the territory except for local police purposes and for the 
defense of the territory. 

Article 3 of the British mandate provided : 

The mandatory shall not establish in the territory any military 
or naval bases, nor erect any fortifications, nor organize any 
native military force except for local police purposes and for the 
defense of the territory. 

Status of mandates. — At the first meeting of the per- 
manent mandates commission, October, 1921, the director 
of the mandates section, Mr. Rappard, made a statement 
as to the territories handed over to the victorious allied 
and associated powers: 

The mandatory system formed a kind of compromise between 
the proposition advanced by the advocates of annexation, and the 
proposition put forward by those who wished to intrust the 
colonial territories to an international administration. 

From these facts certain general principles might already be 
deduced. 

The mandatory powers had assumed a responsibility similar to 
that of a guardian with respect to his ward. The interests of 
the natives were therefore of primary importance, and the rights 
of all the members of the league must always be respected. It 
was in order to complete the League of Nations by a work of 
pacification that these colonies were intrusted to certain powers, 
subject to their securing equal opportunities for the trade and 
commerce of all the members of the league, and subject, also, to 
their being responsible to the league. Great moderation was 
exercised in this respect ; the mandatory powers were only obliged 
to submit to the council a single annual report on their admin- 
istration. 

M. Rappard then proceeded to analyze article 22, and 
noted that the fourth paragraph dealt with former 



62 STATUS OF ISLANDS IK PACIFIC OCEAN 

Turkish territories, the fifth with the former Germ an 
territories in central Africa, and the sixth with south- 
west Africa and certain Pacific islands. 

The treatment to be applied to the populations of these terri- 
tories varied according to the degree of their civilization. The 
Arab populations had been considered to have reached a suffi- 
ciently high degree of civilization to be recognized as independent 
nations, provided that their administration was guided by a man- 
datory until they were able to govern themselves. The populations 
of Central Africa were placed under a system of guardianship 
which was intended to protect them from well-known abuses ; in 
territories of this class all the members of the League of Nations 
enjoyed the same economic rights. In this matter alone did they 
differ from the territories under class C, which were administered 
as an integral part of the territory of the mandatory power. 

What then had been done since the covenant had entered into 
force? A question of principle had been settled regarding the 
competence of the supreme council and of the council of the league, 
respectively. The former German possessions had not been 
handed over — in virtue of the treaties — to the League of Nations, 
but to the principal allied and associated powers. As to the 
former Turkish possessions, the treaty of Sevres, which had not 
yet been ratified, laid down that these should be ceded to the 
principal allied powers. It was the supreme council, therefore, 
which had disposed of these territories and which had divided 
them between the so-called mandatory powers. This took place 
at Versailles and at San Remo. The British Empire, which had 
received 9 mandates out of 14, was intrusted with part of Togo- 
land and the Cameroons, with the greater part of East Africa 
and the island of Nauru in the Pacific, the administration of 
which it shared with Australia and New Zealand. To the British 
Empire were also allotted Mesopotamia and Palestine. The 
Southwest African was intrusted to South Africa. As regards 
the Pacific, Australia received New Guinea, New Zealand received 
Samoa, and the islands north of the Equator, including the 
island of Yap, were allotted to Japan. France was intrusted 
with Syria and the greater part of the Cameroons and Togoland ; 
Belgium received a part of German East Africa bordering on 
the Belgian Congo. (Minutes, Permanent Mandates Commission, 
p. 4, C. 416. M., 296. 1921., VI.) 

Mr. Rappard also said : 

Mandates implied relations between a mandatory and the au- 
thority which conferred the mandate. The powers exercised their 



B AND C MANDATES 63 

mandates on behalf of the League of Nations, and the only official 
link between the mandatories and the league, in whose name they 
exercised their powers, was the mandatory's annual report. Now, 
the covenant laid down that it was the permanent mandates com- 
mission which should examine this report. Therefore, if there 
were no permanent commission, it might be said that the the man- 
dates would exist only on paper and this would, in a measure, 
justify the opinion of the skeptics who saw in the mandates 
nothing but a veiled annexation. (Ibid., p. 6.) 

Discussion in mandates commission. — In 1922 the chair- 
man and representatives of the permanent mandates com- 
mission as a subcommittee made a tour of investigation 
as to the nationality of inhabitants of B and C mandates. 

The British Government said : 

As regards B mandates it is submitted that — 

(a) The mandate does not in itself affect the nationality of 
the inhabitants of the territory mandated. 

(6) The special conditions relating to administration as an 
integral part of the mandatory's territory, where they occur, 
should not affect the nationality of European inhabitants of the 
mandated territory. 

(c) The nationality of the native inhabitants also of such ter- 
ritory remains unaffected by the special conditions referred to 
above. In this connection it may be pointed out that under article 
127 of the treaty of Versailles, such natives are entitled to diplo- 
matic protection by the mandatory power and that under the for- 
eign office consular instructions, natives of territories under Brit- 
ish mandates are already being treated as British-protected 
persons. The treatment of these natives as British-protected per- 
sons does not, of course, confer upon them British nationality. 
(3 League of Nations Official Journal, June, 1922, 595.) 

Mr. Rappard, director of the mandates section, League 
of Nations Secretariat, on November 26, 1921, said, in 
discussing Belgian B mandates : 

Were the mandatory states really sovereign with regard to the 
mandated territory? He thought they must reply in the negative. 
Germany, the State which possessed sovereign rights over the 
territory in question before and during the war, had ceded those 
rights; under the terms of the treaty she had left the fate of 
her colonies to be decided by the live principal allied powers and 
the League of Nations. The mandatory powers only derived their 
rights from these five great powers. Perhaps they might reply 



64 STATUS OF ISLANDS IN PACIFIC OCEAN 

that in these circumstances they were sovereign. But, interesting 
as the question might be from a legal point of view, it appeared 
to him yet more interesting from a political point of view. They 
must, he suggested, discuss a system which would fully satisfy all 
the interests concerned. It would then be the task of the jurists 
to give it a name and to set up a legal framework. 

What were these interests? 

First, there were the interests of the mandatory powers. It 
was quite natural that they should be inclined to give these 
interests precedence over the others. He would be the last to 
dispute it, or to venture on a discussion of Belgian interests with 
the representatives of Belgium. Might he, however, take the lib- 
erty of asking them, with all respect, if they considered that it was 
really in the interests of Belgium to confer her nationality on the 
peoples of the mandated territories? In any case it could not be, 
so far as military matters were concerned. 

For even if, as seemed doubtful, the mandatory state was 
sovereign ; even if it was master of its new nationals, it could not 
employ them for its army. In fact, the covenant laid down that 
these populations could only be armed for local defense. Again, 
in the economic sphere the covenant restricted proprietary rights 
over mandated territories. 

There was one other point which he ventured to suggest to 
their Belgian friends : Would there not be serious political disad- 
vantages for Belgium in administering the peoples of her man- 
dated territory as if they were her own subjects? The inhabitants 
of this territory had an indisputable right to the protection of the 
League of Nations and might have recourse to it. Supposing that 
Belgium's other colonial subjects demanded the same right, how 
could they refuse it to them? They would claim, with apparent 
logic, that it was impossible to submit the subjects of one and the 
same country to different regimes. 

The interests of the inhabitants. — It seemed to him beyond 
dispute that it was to the advantage of the inhabitants that they 
should be in close touch with the League of Nations ; that is to say, 
that they should benefit by the protection which the League of 
Nations gave them under the terms of the covenant. Anything 
that tended to assimilate the inhabitants of the mandated terri- 
tories to the inhabitants of ordinary colonies tended at the same 
time to limit the benefit that these inhabitants might derive from 
the special position of the League of Nations. 

Lastly, there were the interests of the League of Nations. He 
thought there was no doubt that if they gave the inhabitants of 
mandated territories the nationality of the mandatory states, 
those who had always maintained that mandates were only a 



JACOBUS CHRISTIAN V. REX 65 

disguised form of annexation Would be confirmed in their opinion 
by such a decision ; the persons who were neither enemies nor 
friends of the League of Nations would find it difficult to believe 
in the reality of mandates. He ventured to submit this point for 
the consideration of the Belgian Government. (3 League of Na- 
tions Journal, June, 1922, 603.) 

The permanent mandates commission of the League of 
Nations considered for two years the status of inhabi- 
tants of B and C mandates. After its report was sub- 
mitted to a drafting committee the council of the league 
adopted April 23, 1923, the following resolution, Japan 
abstaining : 

The Council of the League of Nations, 

Having considered the report of the permanent mandates com- 
mission on the national status of the inhabitants of territories 
under B and C mandates, 

In accordance with the principles laid down in article 22 of the 
covenant : 

Resolves as follows : 

(1) The status of the native inhabitants of a mandated ter- 
ritory is distinct from that of the nationals of the mandatory 
power and can not be identified therewith by any process having 
general application. 

(2) The native inhabitants of a mandated territory are not 
vested with the nationality of the mandatory power by reason 
of the protection extended to them. 

(3) It is not inconsistent with (1) and (2) above that indi- 
vidual inhabitants of the mandated territory should voluntarily 
obtain naturalization from the mandatory power in accordance 
with arrangements which it is open to such powers to make, with 
this object, under its own law. 

(4) It is desirable that native inhabitants who receive the 
protection of the mandatory power should in each case be desig- 
nated by some form of descriptive title which will specify their 
status under the mandate. (4 League of Nations Official Journal, 
June, 1923, 604.) 

The case of Jacobus Christian v. Rex. — In 1923 in the 
Supreme Court of South Africa the question was raised 
as to whether an inhabitant of Southwest Africa, a man- 
date under the Union of South Africa, was guilty of higli 
treason against King George V on account of hostilities 
against the mandatory. In this case it was held that an 



66 STATUS OF ISLANDS IE" PACIFIC OCEAN" 

attack made upon the Government of the Union of South 
Africa, the " majestas operating internally," with hostile 
intent by an inhabitant of the mandatory would " be suf- 
ficient to found a charge of high treason." The court 
also gives an interpretation of the provisions of the treaty 
of Versailles : 

The legal position of Southwest Africa and its government 
under the treaty of Versailles must now be briefly examined. By 
article 119 Germany renounced in favor of the principal allied 
and associated powers — that is, in favor of the United States, the 
British Empire, France, Italy, and Japan — all rights and titles 
over her overseas possessions. The expression " renounce in 
favor of " is sometimes used in the treaty as equivalent to " cede 
to." By articles 83 and 87, for instance, Germany renounced in 
favor of Czechoslovakia and of Poland, respectively, all right and 
title over territory within certain boundaries separately specified. 
That was, in effect, a cession in each case of the territory indi- 
cated ; it ceased to form portion of Germany, and it became portion 
of the new state. Not so with the overseas possessions, or, at any 
rate, with such of them as fell within the operation of article 22. 
They were not by article 119 ceded to all or any of the principal 
powers any more than the city of Danzig was ceded to them under 
article 100. The animus essential to a legal cession was not 
present on either side. For the signatories must have intended 
that such possessions should be dealt with as provided by Part I 
of the treaty; they were placed at the disposal of the principal 
powers merely that the latter might take all necessary steps for 
their administration on a mandatory basis. * * * 

The position in which the principal powers, the league, and the 
mandatory stand to one another is most vaguely stated. The 
main features are these : There was no cession of the German 
possessions to the principal powers ; there was merely a renuncia- 
tion in their favor in order that such possessions might be dealt 
with in accordance with the terms of the covenant. And the 
principal powers became bound as signatories to the treaty to do 
everything necessary on their part to give effect to the arrange- 
ment. This they did by selecting a mandatory as contemplated 
by article 118, and thereby conferring a mandate upon him. The 
matter then passed under the cognizance of the league, and it 
became the duty of the council to settle the terms of the mandate 
In conformity with the provisions of the covenant. The mandate 
having been accepted, the mandatory became obliged to report 
annually to the council. No limit w T as placed on the duration of 



ATTITUDE OF MANDATES COMMISSION 67 

the mandate and no sanction was provided for a breach of its 
terms. It was probably considered that the force of public 
opinion, and in case of dispute the authority of the Court of 
International Justice would insure the due observance of the 
mandate. It is not necessary to inquire whether the mandate 
once given could be canceled either by the council, which did 
not appoint the mandatory, or by the principal powers, which 
having made the appointment passed the matter on to the council. 
(Juta, the South African Law Reports, 1924, Appellate Division, 
p. 101.) 

Attitude of mandates commission. — In referring to 
class B mandates, the Cameroons and Togoland, which 
for administrative and fiscal purposes had been incor- 
porated with Nigeria and the Gold Coast, the mandates 
commission said in 1924 : 

The administrative union between these two mandated terri- 
tories and the neighboring colonies of the mandatory power leads 
the commission to make a further observation. 

Under the terms of the mandates the mandatory power has the 
right to administer the countries concerned " as integral por- 
tions of its territory." This does not mean that the countries 
concerned have become integral portions of the neighboring col- 
onies, as the wording of certain passages in the reports on Togo- 
land and the Cameroons would appear to suggest. 

While the commission desires to bring this matter to the notice 
of the council, it does not exaggerate its importance. As, how- 
ever, the passages referred to might lead to annexationist aims 
being attributed quite erroneously to the mandatory powers, it 
appears to the commission that their own interest, no less than 
that of the League of Nations, requires that in future any formula 
should be avoided which might give rise to doubts on the subject 
in the minds of ill-informed or ill-intentioned readers. (Minutes, 
Permanent Mandates Commission, p. 190. C. 617, M. 216, 1924, 
VI.) 

United States and mandates. — In 1920 the United 
States and Great Britain had correspondence in regard 
to mandates particularly in the Near East. In this cor- 
respondence the United States welcomed the assurances 
of Great Britain that it would preserve the natural 
resources of the mandated territory for the native peo- 
ples and that equal treatment in commerce and trade 



68 STATUS OF ISLANDS IN PACIFIC OCEAN 

should be maintained for all. The United States did 
not admit that the terms of the mandates could be dis- 
cussed only in the Council of the League of Nations and 
declared itself " one of the powers directly interested in 
the terms of the mandates." (American Secretary of 
State to British Secretary of State for Foreign Affairs, 
November 20, 1920.) 

In a note to the president and members of the Council 
of the League of Nations on February 21, 1921, the Sec- 
retary of State of the United States stated that the ap- 
proval of the United States as one of the allied and as- 
sociated powers was " essential to the validity of any de- 
terminations which may be reached." In this same note, 
referring to mandates relating to islands in the northern 
Pacific Ocean, it was said : 

This Government is also in receipt of information that the 
Council of the League of Nations, at its meeting at Geneva on 
December 17 last, approved among other mandates a mandate to 
Japan embracing " all the former German islands situated in the 
Pacific Ocean and lying north of the Equator." The text of this 
mandate to Japan which was received by this Government and 
which, according to available information, was approved by the 
council, contains the following statement : 

" Whereas the principal allied and associated powers agreed 
that in accordance with Article XXII, Part I (Covenant of the 
League of Nations), of the said treaty, a mandate should be 
conferred upon His Majesty the Emperor of Japan to administer 
the said islands, and have proposed that the mandate should be 
formulated in the following terms," etc. 

The Government of the United States takes this opportunity, 
respectfully and in the most friendly spirit, to submit to the 
president and members of the council of the league that the 
statement above quoted is incorrect and is not an accurate re- 
cital of the facts. On the contrary, the United States, which is 
distinctly included in the very definite and constantly used de- 
scriptive phrase " The principal allied and associated powers," 
has not agreed to the terms or provisions of the mandate which is 
embodied in this text, nor has it agreed that a mandate should 
be conferred upon Japan covering all the former German islands 
situated in the Pacific Ocean and lying north of the Equator. 



UNITED STATES AND MANDATES 69 

The United States has never given its consent to the inclusion 
of the island of Yap in any proposed mandate to Japan, but, on 
the other hand, at the time of the discussion of a mandate cover- 
ing the former German islands in the Pacific north of the 
Equator, and in the course of said discussion, President Wilson, 
acting on behalf of this Government, was particular to stipulate 
that the question of the disposition of the island of Yap should 
be reserved for future consideration. Subsequently, this Gov- 
ernment was informed that certain of " the principal allied and 
associated powers " were under the impression that the reported 
decision of the supreme council, sometimes described as the council 
of four, taken at its meeting on May 7, 1919, included or inserted 
the island of Yap in the proposed mandate to Japan. This Gov- 
ernment in notes addressed to the Governments of Great Britain, 
France, Italy, and Japan, has set forth at length its contention 
that Yap had in fact been excepted from this proposed mandate 
and was not to be included therein. Furthermore, by direction 
of President Wilson, the respective Governments above men- 
tioned, were informed that the Government of the United States 
could not concur in the reported decision of May 7, 1919, of the 
supreme council. The information was further conveyed that the 
reservations which had previously been made by this Government 
regarding the island of Yap were based on the view that the 
island of Yap necessarily constitutes an indispensable part of any 
scheme or practicable arrangement of cable communication in the 
Pacific, and that its free and unhampered use should not be 
limited or controlled by any one power. 

While this Government has never assented to the inclusion of 
the island of Yap in the proposed mandate to Japan, it may be 
pointed out that even if one or more of the other principal allied 
and associated powers were under a misapprehension as to the 
inclusion of this island in the reported decision of May 7, 1919, 
nevertheless the notes above mentioned of the United States make 
clear the position of this Government in the matter. At the time 
when the several notes were addressed to the respective Govern- 
ments above mentioned, a final agreement had not been reached 
as to the terms and allocation of mandates covering the former 
German islands in the Pacific. Therefore, the position taken in 
the matter by the President on behalf of this Government and 
clearly set forth in the notes referred to, necessarily had the result 
of effectively withdrawing any suggestion or implication of assent, 
mistakenly imputed to this Government, long before December 
17, 1920, the date of the council's meeting at Geneva. 

As one of " The principal allied and associated powers," the 
United States has an equal concern and an inseparable interest 



70 STATUS OF ISLANDS IN PACIFIC OCEAN 

with the other principal allied and associated powers in the 
overseas possessions of Germany, and concededly an equal voice 
in their disposition, which it is respectfully submitted can not 
be undertaken or effectuated without its assent. The Government 
of the United States therefore respectfully states that it can not 
regard itself as bound by the terms and provisions of said man- 
date and desires to record its protest against the reported de- 
cision of December 17, last, of the Council of the League of 
Nations in relation thereto, and at the same time to request that 
the council, having obviously acted under a misapprehension of 
the facts, should reopen the question for the further consideration, 
which the proper settlement of it clearly requires. 

In a very friendly note of March 1, 1921, the Council 
of the League of Nations expressed its desire for the co- 
operation of the United States, but also said : 

The League of Nations Council would remind your excellency 
that the allocation of all the mandated territories is a function 
of the supreme council and not of the council of the league. The 
league is concerned not with the allocation but with the admin- 
istration of these territories. Having been notified in the name 
of the allied and associated powers that all the islands north of 
the Equator had been allocated to Japan the council of the league 
merely fulfilled its responsibility of defining the terms of the 
mandate. 

The North Pacific islands. — There had been communi- 
cations between the United States and Japan. A tele- 
gram from the American Secretary of State to the charge 
cl'aifairs in Tokyo on November 9, 1920, was as follows : 

During the recent sessions of the communications conference 
some question has arisen in regard to the disposition of the 
island of Yap by the supreme council. It has been contended 
that this island was included in the islands north of the Equator, 
which were offered by action of the supreme council of May 7, 
3919, under mandate to Japan. It was the clear understanding 
of this Government that for reasons vitally affecting international 
communications the supreme council, at the previous request of 
President Wilson, reserved for future consideration the final dis- 
position of the island of Yap in the hope that some agreement 
might be reached by the allied and associated Governments to 
place the island under international control and thus render it 
available as an international cable station. For this reason it is 
the understanding of the Government that the island of Yap 



NORTH PACIFIC ISLANDS 71 

was not included in the action of the supreme council on May 
7, 1919. 

In order to avoid misunderstanding on this point, you are in- 
structed to read the foregoing to the minister of foreign affairs 
and to leave a copy with him. 

The Japanese Foreign Office replied on November 19, 
1920: 

The Department of Foreign Affairs of Japan has the honor to 
acknowledge the receipt of a memorandum of the United State* 
Embassy under date of the 12th instant relative to the status of 
the island of Yap. 

According to the definite understanding of the Japanese Gov- 
ernment the supreme council of May 7, 1919, came to a final 
decision to place under the mandate of Japan the whole of the 
German islands north of the Equator. The decision involves no 
reservation whatever in regard to the island of Yap. 

For the above-mentioned reasons the Department of Foreign 
Affairs begs to inform the United States embassy that the Jap- 
anese Government would not be able to consent to any proposition 
which, reversing the decision of the supreme council, would 
exclude the island of Yap from the territory committed to their 
charge. 

In a note of December 6, 1920, to the American charge 
d'affaires after a long argument, the Acting Secretary of 
State says : 

I am directed by the President to inform you that the Govern- 
ment of the United States can not agree that the island of Yap 
was included in the decision of May 7 or in any other agreement 
of the supreme council. And in addition that, as the island of 
Yap must form an indispensable part of the international com- 
munications, it is essential that its free and unhampered use for 
such purposes should not be limited or controlled by any one 
power, even on the assumption that the island of Yap should be 
included among the islands held under mandate by Japan, it is 
not conceivable that other powers should not have, free and un- 
hampered access to and use of the island for the landing and 
operation of cables. This is a right which the United States 
would be* disposed to grant upon any of its unfortified islands 
which may be essential for such purposes. 

The Government of the United States expresses the hope that 
the above statements of fact will convince the Japanese Govern- 
ment of the correctness of the position of the United States with 



72 STATUS OF ISLANDS IN PACIFIC OCEAN 

respect to the mandate over the island of Yap and also that the 
Japanese Government will concur in the view of the United States 
that even if Yap should be assigned under mandate to Japan all 
other powers should have free and unhampered access to the 
island for the landing and operation of cables. 

A similar long note from the Japanese Foreign Office 
on February 26, 1921, said : 

In the concluding part of the note under reply it is observed 
that even on the assumption that the Island of Yap should be 
included among the islands held under the mandate by Japan, 
it is not conceivable that other powers should not have free and 
unhampered access to and use of the island for the landing and 
operation of cables. If this observation is put forth irrespective 
of the fact that the island is within the mandatory territory, then 
the question seems to be one which should be freely settled by 
the nation which has the charge of the place, namely, Japan. If 
this meaning be, however, that owing to the nature of the mandate 
the island should have its doors kept open, the Imperial Govern- 
ment would draw attention to the extract of the meeting of the 
commission on mandates held on July 8, 1919. Colonel House 
opposed Viscount Chinda's claim that the same equal opportuni- 
ties for commerce and trade should be guaranteed in territories 
belonging to the C class as in those belonging to the B class. In 
view of the position thus taken by the American delegate the 
Imperial Government feel obliged to state that in their opinion 
the American Government can not with justice contend for the 
open door in the C class territories at least as against Japan and 
to inform the United States Government at the same time that 
they can not consider themselves bound in any way to recognize 
the freedom of other nations in the manner insisted upon by the 
American Government in regard to the landing and the operation 
of cables even in places where the principle of the open door is to 
be guaranteed. 

In a further communication of April 2, 1921, the 
United States expressed itself as unable to agree with the 
contention of the Japanese Government and concludes 
after reviewing previous arguments : 

In particular, as no treaty has ever been concluded with the 
United States relating to the island of Yap, and as no one has 
ever been authorized to cede or surrender the right or interest 
of the United States in the island, this Government must insist 
that it has not lost its right or interest as it existed prior to any 



GERMAN-AMERICAN TREATY, 1921 73 

action of the supreme council or of the League of Nations, and 
can not recognize the allocation of the island or the validity of 
the mandate to Japan. 

In this view, this Government deems it to be unnecessary at 
this time to consider the terms of the so-called C mandates, or 
the discussion with respect thereto. 

This Government, as has been clearly stated in previous com- 
munications, seeks no exclusive interest in the island of Yap and 
has no desire to secure any privileges without having similar 
privileges accorded to other powers, including, of course, Japan, 
and relying upon the sense of justice of the Government of Japan 
and of the governments of the other allied and associated powers, 
this Government looks with confidence to a disposition of the 
matter whereby the just interests of all may be properly con- 
served. 

Similar notes were also sent to Great Britain, France, 
and Italy. 

The difference of opinion was at length adjusted at the 
Washington conference in the treaty of February 11, 1922. 

Treaty of August 85, 1921. — In the treaty between the 
United States and Germany of August 25, 1921, article 
2, paragraph 2, it is provided : 

Art. 2. With a view to defining more particularly the obliga- 
tions of Germany under the foregoing article with respect to cer- 
tain provisions in the treaty of Versailles, it is understood and 
agreed between the high contracting parties : 

1. That the rights and advantages stipulated in that treaty for 
the benefit of the United States, which it is intended the United 
States shall have and enjoy, are those defined in section 1 of 
Part IV, and Parts V, VI, VIII, IX, X, XI, XII, XIV, and XV. 
The United States, in availing itself of the rights and advantages 
stipulated in the provisions of that treaty mentioned in this para- 
graph, will do so in a manner consistent with the rights accorded 
to Germany under such provisions. 

2. That the United States shall not be bound by the provisions 
of Part I of that treaty nor by any provisions of that treaty, 
including those mentioned in paragraph 1 of this article, which 
relate to the covenant of the League of Nations, nor shall the 
United States be bound by any action taken by the League of 
Nations or by the council or by the assembly thereof, unless the 
the United States shall expressly give its assent to such action. 

9855 — 31 6 



74 STATUS OF ISLANDS IN PACIFIC OCEAN 

As mandates in the South Pacific and elsewhere are 
in part intrusted to political unities with which the 
United States has at present no direct diplomatic rela- 
tions, as in the case of Australia and New Zealand, the 
problem of negotiating agreements similar to those with 
France and Belgium arises, but an arrangement may not 
be difficult. 

Treaty of Februa\ry\ 11, 1922. — As regards some powers, 
the agreements relating to mandates are in part condi- 
tioned upon the convention between the United States 
and Japan of February 11, 1922, and the notes exchanged 
in reference thereto. 

By the President of the United States of America 

A PROCLAMATION 

Whereas a convention between the United States of America 
and Japan with regard to the rights of the two Governments and 
their respective nationals in the former German islands in the 
Pacific Ocean, lying north of the Equator, in particular the island 
of Yap, was concluded and signed by their respective plenipoten- 
tiaries at Washington, on the 11th of February, 1922, the original 
of which convention is word for word as follows: 

The United States of America and Japan ; 

Considering that by article 119 of the treaty of Versailles, signed 
on June 28, 1919, Germany renounced in favor of the powers 
described in that treaty as the principal allied and associated 
powers, to wit, the United States of America, the British Empire, 
France, Italy, and Japan, all her rights and titles over her oversea 
possessions ; 

Considering that the benefits accruing to the United States under 
the aforesaid article 119 of the treaty of Versailles were confirmed 
by the treaty between the United States and Germany, signed on 
August 25, 1921, to restore friendly relations between the two 
nations ; 

Considering that the said four powers, to wit, the British 
Empire, France, Italy, and Japan, have agreed to confer upon His 
Majesty the Emperor of Japan a mandate, pursuant to the treaty 
of Versailles, to administer the groups of the former German 



TREATY, FEBRUARY 11, 192 2 75 

islands in the Pacific Ocean lying north of the Equator, in accord- 
ance with the following provisions : 

"Article 1. The islands over which a mandate is conferred upon 
His Majesty the Emperor of Japan (hereinafter called the manda- 
tory) comprise all the former German islands situated in the 
Pacific Ocean and lying north of the Equator. 

"Art. 2. The mandatory shall have full power of administration 
and legislation over the territory subject to the present mandate 
as an integral portion of the Empire of Japan, and may apply the 
laws of the Empire of Japan to the territory, subject to such local 
modifications as circumstances may require." 

The mandatory shall promote to the utmost the material and 
moral well-being and the social progress of the inhabitants of the 
territory subject to the present mandate. 

"Art. 3. The mandatory shall see that the slave trade is pro- 
hibited and that no forced labor is permitted, except for essential 
public works and services, and then only for adequate remun- 
eration." 

The mandatory shall also see that the traffic in arms and 
ammunition is controlled in accordance with principles analogous 
to those laid down in the convention relating to the control of the 
arms traffic, signed on September 10, 1919, or in any convention 
amending same. 

The supply of intoxicating spirits and beverages to the natives 
shall be prohibited. 

"Art. 4. The military training of the natives, otherwise than for 
purposes of internal police and the local defence of the territory, 
shall be prohibited. Furthermore, no military or naval bases shall 
be established or fortifications erected in the territory. 

"Art. 5. Subject to the provisions of any local law for the main- 
tenance of public order and public morals, the mandatory shall 
ensure in the territory freedom of conscience and the free exercise 
of all forms of worship, and shall allow all missionaries, nationals 
of any state member of the League of Nations, to enter into, 
travel, and reside in the territory for the purpose of prosecuting 
their calling. 

"Art. 6. The mandatory shall make to the Council of the League 
of Nations an annual report to the satisfaction of the council, con- 
taining full information with regard to the territory, and indicat- 
ing the measures taken to carry out the obligations assumed under 
articles 2, 3, 4, and 5. 

"Art. 7. The consent of the Council of the League of Nations is 

required for any modification of the terms of the present mandate." 

The mandatory agrees that if any dispute whatever should arise 

between the mandatory and another member of the League of 



76 STATUS OF ISLANDS IN PACIFIC OCEAN 

Nations relating to the interpretation or the application of the 
provisions of the mandate, such dispute, if it can not he settled by 
negotiation, shall be submitted to the Permanent Court of Inter- 
national Justice provided for by article 14 of the covenant of the 
League of Nations ; 

Considering that the United States did not ratify the treaty of 
Versailles and did not participate in the agreement respecting the 
aforesaid mandate; 

Desiring to reach a definite understanding with regard to the 
rights of the two governments and their respective nationals in 
the aforesaid islands, and in particular the island of Yap, have 
resolved to conclude a convention for that purpose and to that end 
have named as their plenipotentiaries : 

The President of the United States of America : Charles Evans 
Hughes, Secretary of State of the United States; and 

His Majesty the Emperor of Japan : Baron Kijuro Shidehara, 
His Majesty's ambassador extraordinary and plenipotentiary at 
Washington ; 

Who, after having communicated to each other their respective 
full powers, found to be in good and due form, have agreed as 
follows : 

ARTICLE I 

Subject to the provisions of the present convention, the United 
States consents to the administration by Japan, pursuant to the 
aforesaid mandate, of all the former German islands in the Pacific 
Ocean lying north of the Equator. 

ARTICLE II 

The United States and its nationals shall receive all the benefits 
of the engagements of Japan, defined in articles 3, 4, and 5 of the 
aforesaid mandate, notwithstanding the fact that the United 
States is not a member of the League of Nations. 

It is further agreed between the high contracting parties as 
follows : 

(1) Japan shall insure in the islands complete freedom of con- 
science and the free exercise of all forms of worship which are 
consonant with public order and morality ; American mission- 
aries of all such religions shall .be free to enter the islands and to 
travel and reside therein, to acquire and possess property, to 
erect religious buildings and to open schools throughout the 
islands ; it being understood, however, that Japan shall have the 
right to exercise such control as may" be necessary for the main- 



TREATY, FEBRUARY 11,1922 77 

tenance of public order and good government and to take all 
measures required for such control. 

(2) Vested American property rights in the mandated islands 
shall be respected and in no way impaired. 

(3) Existing treaties between the United States and Japan 
shall be applicable to the mandated islands. 

(4) Japan will address to the United States a duplicate of the 
annual report on the administration of the mandate to be made 
by Japan to the Council of the League of Nations. 

(5) Nothing contained in the present convention shall be 
affected by any modification which may be made in the terms of 
the mandate as recited in the convention, unless such modifica- 
tion shall have been expressly assented to by the United States, 

ARTICLE III 

The United States and its nationals shall have free access to 
the island of Yap on a footing of entire equality with Japan or 
any other nation and their respective nationals in all that relates 
to the landing and operation of the existing Yap-Guam cable or 
of any cable which may hereafter be laid or operated by the 
United States or by its nationals connecting with the island of Yap. 

The rights and privileges embraced by the preceding paragraph 
shall also be accorded to the Government of the United States 
and its nationals with respect to radiotelegraphic communica- 
tion ; provided, however, that so long as the Government of Japan 
shall maintain on the island of Yap an adequate radiotelegraphic 
station, cooperating effectively with the cables and with other 
radio stations on ships or on shore, without discriminatory exac- 
tions or preferences, the exercise of the right to establish radio- 
telegraphic stations on the island by the United States or its 
nationals shall be suspended. 

ARTICLE IV 

In connection with the rights embraced by Article III, specific 
rights, privileges, and exemptions, in so far as they relate to 
electrical communications, shall be enjoyed in the island of Yap 
by the United States and its nationals in terms as follows : 

(1) Nationals of the United States shall have the unrestricted 
right to reside in the island, and the United States and its na- 
tionals shall have the right to acquire and hold on a footing of 
entire equality with Japan or any other nation or their respective 
nationals all kinds of property and interests, both personal and 
real, including lands, buildings, residences, offices, works, and 
appurtenances, 



78 STATUS OF ISLANDS IN PACIFIC OCEAN 

(2) Nationals of the United States shall not be obliged to 
obtain any permit or license in order to be entitled to land and 
operate cables on the island, or to establish radiotelegraphic serv- 
ice, subject to the provisions of Article III, or to enjoy any 
of the rights and privileges embraced by this article and by 
Article III. 

(3) No censorship or supervision shall be exercised over cable 
or radio messages or operations. 

(4) Nationals of the United States shall have complete freedom 
of entry and exit in the island for their persons and property. 

(5) No taxes, port, harbor, or landing charges or exactions of 
any nature whatsoever shall be levied either with respect to the 
operation of cables or radio stations or with respect to property, 
persons, or vessels. 

(6) No discriminatory police regulations shall be enforced. 

(7) The Government of Japan will exercise its power of expro- 
priation in the island to secure to the United States or its 
nationals needed property and facilities for the purpose of elec- 
trical communications if such property or facilities can not 
otherwise be obtained. 

It is understood. that the location and the area of land so to be 
expropriated shall be arranged between the two Governments 
according to the requirements of each case. Property of the 
United States or of its nationals and facilities for the purpose 
of electrical communication in the island shall not be subject to 
expropriation. 

article v 

The present convention shall be ratified by the high contracting 
parties in accordance with their respective constitutions. The 
ratifications of this convention shall be exchanged in Washington 
as soon as practicable, and it shall take effect on the date of the 
exchange of the ratifications. 

In witness whereof the respective plenipotentiaries have signed 
this convention and have hereunto affixed their seals. 

Done in duplicate at the city of Washington this 11th day of 
February, 1922. 

Charles Evans Hughes, [seal.] 
K. Shidehara. [seal.] 

And whereas the said convention has been duly ratified on both 
parts and the ratifications of the two Governments were ex- 
changed in the city of Washington, on the 13th day of July, 1922 ; 

Now, therefore, be it known that I, Warren G. Harding, Presi- 
dent of the United States of America, have caused the said con- 
vention to be made public, to the end that the same and every 



EXCHANGE OE NOTES, 1922 79 

article and clause thereof may be observed and fulfilled with good 
faith by the United States and the citizens thereof. 

In testimony whereof I have hereunto set my hand and caused 
the seal of the United States to be affixed. 

Done at the city of Washington, this 13th day of July, in the 
year of our Lord 1922, and of the independence of the United 
States the one hundred and forty-seventh. 

[seal.] Warren G. Harding. 

By the President : 

Charles E. Hughes, 

Secretary of State. 



[Exchanges of notes] 

[The Japanese Ambassador to the Secretary of State] 

Japanese Embassy, 
Washington, February 11, 1922. 

Sir: In proceeding this day to the signature of the convention 
between Japan and the United States with respect to the islands, 
under Japan's mandate, situated in the Pacific Ocean and lying 
north of the Equator, I have the honor to assure you, under 
authorization of my Government, that the usual comity will be 
extended to nationals and vessels of the United States in visiting 
the harbors and waters of those islands. 

Accept, sir, the renewed assurances of my highest consideration. 

K. Shidehara. 

Hon. Charles E. Hughes, 

Secretary of State. 



[The Secretary of State to the Japanese Ambassador] 

Department of State, 
Washington, February 11, 1922. 
Excellency: I have the honor to acknowledge the receipt of 
your excellency's note under date of February 11, 1922, stating 
that the Japanese Government are quite willing to extend to 
American nationals and vessels the usual comity in visiting the 
harbors and waters of the Japanese mandated islands. 

Accept, excellency, the renewed assurances of my highest 
consideration. 

Charles E. Hughes. 
His Excellency Baron Kijuro Shidehara, 

Ambassador of Japan. 



80 STATUS OF ISLANDS IN PACIFIC OCEAN 

[The Secretary of State to the Japanese ■Ambassador'] 

Department of State, 
Washington, February 11, 1922. 

Excellency: In proceeding this day to the signature of the 
convention between the United States and Japan with respect to 
former German possessions under a mandate to Japan, I have 
the honor to state that if in the future the Government of the 
United States should have occasion to make any commercial 
treaties applicable to Australia and New Zealand, it will seek to 
obtain an extension of such treaties to the mandated islands south 
of the Equator, now under the administration of those Domin- 
ions. I should add that the Government of the United States has 
not yet entered into a convention for the giving of its consent 
to the mandate with respect to these islands. 

I have the honor further to state that it is the intention of the 
Government of the United States, in making conventions, re- 
lating to former German territories under mandate, to request 
that the governments holding mandates should address to the 
United States, as one of the principal allied and associated pow- 
ers, duplicates of the annual reports of the administration of their 
mandates. 

Accept, excellency, the renewed assurance of my highest 
consideration. 

Charles E. Hughes. 

His Excellency Baron Kijuro Shidehara, 

Ambassador of Japan. 



[The Japanese Ambassador to the Secretary of State] 

Japanese Embassy, 
Washington, February 11, 1922. 

Sir: I have the honor to acknowledge the receipt of your note 
of this date, stating that if in the future the Government of the 
United States should have occasion to make any commercial 
treaties applicable to Australia and New Zealand, it will seek to 
obtain an extension of such treaties to the islands south of the 
Equator, under the mandate of Australia and New Zealand, and 
further that it is the intention of the Government of the United 
States, in making hereafter conventions relating to former German 
territories under mandate, to request that the mandatories should 
address to the United States, as one of the principal allied and 
associated powers, duplicates of the annual reports on the admin- 
istration of such mandated territories. 



JAPAN IN THE PACIFIC 81 

In taking note of your communication under acknowledgment, 
I beg you, Sir, to accept the renewed assurances of my highest 
consideration. 

K. Shidehaba. 
Hon. Charles E. Hughes, 

Secretary of State. 

Japan in the Pacific. — In the second annual report on 
Japan's mandated territory there is an outline of gen- 
eral administration which states: 

When the German Pacific islands north of the Equator were 
occupied by the Japanese expeditionary squadron in October, 1914, 
the commander of the squadron immediately established military 
administration on the islands. On December 28, 1914, a provi- 
sional naval garrison was established to take over the defense and 
administration of the islands from the expeditionary squadron. 

The headquarters of the provisional naval garrison was estab- 
lished on Truk, the islands being divided into six administrative 
jurisdictions — those of Saipan, Palau, Yap, Truk, Ponape, and 
Jaluit — and guards were stationed in the respective jurisdictions. 
The chiefs of these guards were instructed to discharge their ad- 
ministrative functions in conformity, in so far as was compatible 
with military requirements, with the rules and customs which 
were in force before the Japanese occupation ; and also specially 
to respect the various powers which were possessed by native 
chieftains over their tribesmen, with a view to gradually foster- 
ing the spirit of self-government among the natives. 

It was due to unavoidable military requirements that the chiefs 
of guards were put in direct charge of administrative affairs on 
the islands. Subsequently, however, the last vestige of the Ger- 
man squadron in the Pacific having disappeared, a civil admin- 
istration department, under the control of the commander of the 
naval garrison, was established on July 1, 1918, together with a 
civil administration station in each of the six administrative 
jurisdictions. The staffs of these offices were all composed of 
civil officials, who took over the charge of general administrative 
affairs from the guards which thereafter devoted themselves 
exclusively to local policing. 

The mandate for the German Pacific islands north of the 
Equator being assigned to Japan by the League of Nations Council 
on December 17, 1920, the Japanese Government have taken 
various steps to fulfil the terms of the mandate. The withdrawal 
of guards from the islands was commenced in 1921, and by March, 
1922, all the troops will be withdrawn from the entire region. 
At the same time the provisional naval garrison will be abolished, 



82 STATUS OP ISLANDS IN PACIFIC OCEAN 

while a south seas bureau, under the supervision of the prime 
minister, will be brought into existence to take charge of general 
administrative affairs in the mandated territory (p. 1.) 

Later, in the same report, it is explained that — 

The principles set down in the mandate for the German Pacific 
islands north of the Equator are similar to those followed by 
Japan ever since the islands came under her control in 1914 — 
so much so that when the assignment of the mandate to Japan 
was decided upon in 1920 there was scarcely any need of modify- 
ing our administrative principles. However, since some of the 
laws and regulations promulgated during the war remain unre- 
vised, and since some basic investigations relating to general 
administrative affairs have not yet been completed owing to the 
very low standard of human development among the islanders 
and also because of the defective system of communication be- 
tween the various islands, some inadequacy is still felt in regard 
to the existing institutions, and the Japanese Government are 
doing their best to remove these drawbacks characteristic of a 
transition period (p. 3). 

All naval units were reported by Japan to have been 
withdrawn in April, 1922, and the maintenance of peace 
and order to have been placed in the hands of an organ- 
ized police force. 

Mandate and mandatory. — In the discussion in the per- 
manent mandates commission of the League of Nations 
June 10, 1926, the matter of relation of the mandate to 
the mandatory arose. 

RELATION BETWEEN SOUTH AFRICA, AS MANDATORY, AND THE MAN- 
DATED TERRITORY OF SOUTHWEST AFRICA 

M. Van Rees said he would ask the commission before consid- 
ering the report to note a declaration which had been made by 
General Smuts in the South African Parliament during a debate 
which had taken place from July 13 to July 27 of last year. Gen- 
eral Smuts, referring to the Union of South Africa and the man- 
dated territory, had expressed himself as follows : 

"I should have preferred the two countries more closely linked 
up at this stage. When I urge this it may be said that I am work- 
ing in favor of the annexation of Southwest Africa to the Union ; 
but I am not. I do not think it is necessary for us to annex 
Southwest to the Union. The mandate for me is enough, and it 



MANDATE AND MANDATORY 8d 

should be enough for the Union. It gives the Union such complete 
power of sovereignty not only administrative but legislative that 
we need not ask for anything more. When the covenant of the 
League of Nations and subsequently the mandate gave to us the 
right to administer that country as an integral portion of the 
Union, everything was given to us. I remember at the peace 
conference one of the great powers tried to modify the position, 
and instead of saying ' as an integral portion ' an amendment was 
made to introduce the word ' if ' so that it should read ' as if an 
integral portion of the mandatory power.' But after considera- 
tion the ' if ' was struck out. We therefore have the power to 
govern Southwest Africa actually as an integral portion of the 
Union. Under these circumstances I maintain — and I have 
always maintained — that it will never be necessary for us, as far 
as I can see, to annex Southwest. We can always continue to 
fulfill the conditions imposed on us by the mandate, and we can 
always render annual reports to the League of Nations in respect 
of the mandate." 

The mandates commission had always interpreted paragraph 6 
of article 22 of the covenant in the sense that the mandated terri- 
tory should be administered as if it were an integral portion of 
the territory of the mandatory. According to the interpretation, 
however, given by General Smuts to this passage, Southwest Africa 
constituted a part of the Union of South Africa, for he rejected 
the interpretation according to which this position only rested on 
a supposition. 

In this case, however, nothing would remain but a territory 
which was incorporated politically and in actual fact in the Union, 
and consequently there would be no longer a territory under man- 
date. It was for this reason that M. Van Rees thought that the 
commission could not pass over in silence the declaration of Gen- 
eral Smuts. 

Sir F. Lugard did not think that the insertion or omission of 
the word " if " made any real difference in practice. The point of 
substance was that a mandatory power was bound to carry out 
the terms of the mandate, to present an annual report to the 
League of Nations, and that the right of petition was recognized 
as belonging to the inhabitants. So long as these points of sub- 
stance were admitted, a mandated territory was in practice in 
quite a different position from that of a colony. 

M. Orts did not think that what had been said during the dis- 
cussions preceding the adoption of the covenant could be used as 
an argument. No minutes had been kept of the conferences at 
the Hotel Crillon, which meant that as far as the Covenant of the 



84 STATUS OF ISLAKDS IK PACIFIC OCEAN" 

League of Nations was concerned this ordinary source of interpre- 
tation was completely lacking. 

In order to interpret the covenant, the permanent mandates 
commission could not take into account the personal recollections 
of the statesmen who had taken part in those conferences. It 
could not be influenced by the arguments put forward by General 
Smuts with regard to a first draft of article 22, of which no trace 
remained, any more than there remained any trace of the con- 
siderations which had caused that draft to be modified. 

M. Rappard agreed with M. Orts. The views of General Smuts 
on C mandates were well known. He had indeed stated several 
years previously that in his eyes the institution of such mandates 
was equivalent, in all but name, to annexation or something very 
like it. M. Rappard observed, with regard to the point raised by 
M. Orts, that article 22 of the covenant had not even been dis- 
cussed by the committee on the League of Nations at the peace 
conference, but had been drafted by the supreme council. The 
conversations between the statesmen assembled at Paris which 
had taken place with regard to this matter could not be regarded 
as binding on members of the League of Nations. 

He did not think that a matter of principle was actually af- 
fected by the declaration of General Smuts. The covenant, by 
the terms of which mandated territories were administered in 
the name of the League of Nations, remained untouched. Gen- 
eral Smuts was perfectly free to state that an integral part of 
the territory of South Africa was administered in the name of 
the League of Nations, although, in the view of M. Rappard, it 
would appear more logical to say that it was administered in the 
name of the League of Nations as if it formed an integral part 
of the territory. (Minutes 9th Session. Permanent Mandates Com- 
mission, C. 405, M. 144, 1926, VI, p. 33-34.) 

Belgian attitude, 192J^. — In a note annexed to a letter 
to the secretary-general of the League of Nations, June 
7, 1924, the following view was expressed by Belgium : 

All acts of administration regularly performed on behalf of 
the mandated territory by its accredited representative have the 
same force as those performed by a power capable of governing 
itself. As in the case of a trusteeship, properly speaking, such 
acts — the legal relations which they created with third parties, 
the engagements which they undertook, and the guaranties which 
they established — subsisted, whatever, might be the ultimate 
changes made in the regime of the territories to which assist- 
ance was given. (Minutes, 5th Session, Permanent Mandates 
Commission, C. 617, M. 216, 1924, VI, p. 154.) 



MANDATORY POWERS 85 

Powers of mandatory. — The powers of a mandatory 
state may be seen from article 2 of the mandate for the 
Pacific islands north of the Equator, which were allocated 
to Japan : 

The mandatory shall have full power of administration and 
legislation over the territory subject to the present mandate as 
an integral portion of the Empire of Japan, and may apply the 
laws of the Empire of Japan to the territories, subject to such 
local modification as circumstances may require. 

The mandatory must give heed to the welfare of the 
natives, etc., and, " furthermore, no military or naval 
bases shall be established or fortifications erected in the 
territory." 

The mandatory must also make " an annual report to 
the satisfaction of the council " concerning its adminis- 
tration, and by the Yap agreement must also address a 
duplicate of this report to the United States. 

On December 16, 1920, a report of the subcommittee of 
the League of Nations on mandates said : 

In the first place, they feel that the mandatory should not be 
allowed to make use of its position in order to increase its. 
military strength. 

Administered as integral portions. — Manifestly if 
states are to be intrusted with mandated areas, the states 
must have authority to administer these territories. 
Article 22 of the covenant of the league foresees that these 
" can be best administered under the laws of the man- 
datory as integral portions of its territory." There is 
thus visualized possible unity of administration, but, by 
virtue of the specific provision, the unification is thereby 
limited and incorporation is not implied. 

The list of questions suggested by the permanent man- 
dates commission in 1926 had for its object to obtain 
from the mandatories in their annual reports data of a 
character that would be more helpful. The earlier ques- 
tionnaire had not proven entirely satisfactory. The ques- 
tions proposed in 1926 involved information in regard 
to military forces maintained, expenditure upon police 



86 STATUS OF ISLANDS IN PACIFIC OCEAN 

and military forces, nature of control of arms, etc. The 
British and other Governments objected to the detailed 
nature of these 236 questions as well as to the idea that 
representatives of the mandated populations might ap- 
pear before the mandates commission. Great Britain 
consulted the Dominion Governments and in a communi- 
cation of November 8, 1926, said : 

3. In order properly to appreciate the issues at stake it seems 
to these Governments necessary to examine shortly the theory 
and purpose of mandates and to form a clear idea of the manda- 
tory principle. 

4. The purpose of the mandatory system and the duties thereby 
devolving respectively upon the mandatory Governments and the 
league are set forth in article 22 of the covenant. It is there 
stated that the well-being and development of inhabitants of 
mandated territories are a sacred trust of civilization, and that 
the best method of achieving this object is " that the tutelage of 
such peoples should be intrusted to advanced nation who, by reason 
of their resources, their experience, or their geographical position, 
can best undertake this responsibility, and who are willing to 
accept it, and that this tutelage should be exercised by them as 
mandatories on behalf of the league. 

5. After laying down this general principle, the covenant pro- 
ceeds to distinguish between the three different classes of terri- 
tories which have been allotted under A, B, and C mandates, 
respectively. In regard to B mandates the covenant says (par. 

5 of art. 22) that " the mandatory must be responsible for the 
administration of the territory under conditions which will guar- 
antee freedom of conscience and religion," subject to certain con- 
siderations. Territories under C mandates " can best be admin- 
istered under the laws of the mandatory as integral portions of 
its territory, subject to the safeguards above mentioned." (Par. 

6 of art. 22. ) 

6. Finally, " the mandatory shall render to the council an an- 
nual report in reference to the territory committed to its charge," 
and " a permanent commission shall be constituted to receive and 
examine the annual reports of the mandatories and to advise the 
council on all matters relating to the observance of the mandates." 

7. In his report to the council in August, 1920, the Belgian 
delegate (M. Hymans), who acted as rapporteur, suggested that, 
in the case of B mandates, " the mandatory power will enjoy, in 
my judgment, a full exercise of sovereignty, in so far as such 
exercise is consistent with the carrying out of the obligations im- 



TROOPS IN MANDATE 87 

posed by paragraphs 5 and 6 (of art. 22 of the covenant). In 
paragraph 6, which deals with C mandates, the scope of these 
obligations is perhaps narrower than in paragraph 5, thus allow- 
ing the mandatory power ' more nearly to assimilate the mandated 
territory to its own'." (British Parliamentary Papers, Miscella- 
neous No. 10 (1926). Permanent Mandates Commission, Cmd. 
2767, p. 14.) 

Later the Council of the League of Nations expressed 
itself as unfavorable to permitting representatives of 
mandated populations to appear before the mandates 
commission though maintaining the right of petition. 
The tendency has been for the mandates commission to 
favor constructive measures in the direction of improving 
the condition of the mandated territories while refrain- 
ing from unnecessary interference with methods and 
policies of the mandatory powers. 

Mr. Miller on troops in mandates. — Mr. David Hunter 
Miller, who was technical adviser to the American com- 
mission at the Paris Peace Conference, writing of the 
discussion at the conference in regard to native troops in 
mandated areas, said : 

Furthermore, there is no doubt that the French contention re- 
garding recruiting of troops in their mandated territories in 
Africa was accepted at the afternoon meeting of the Council of 
Ten of January 30. The language of Clemenceau could hardly 
have been more explicit; in the original unrevised text of the 
minutes the rather long discussion ended thus : 

" Mr. Lloyd-George said that there was nothing in the clause 
under review to prevent that. The words used there were ' for 
other than police purposes and the defense of territory.' He 
really thought that those words would cover the case of France. 
There was nothing in the document which would prevent their 
doing exactly the same thing as they had done before. What 
it did prevent was the kind of thing the Germans were likely to 
do, namely, organize great black armies in Africa, which they 
could use for the purpose of clearing everybody else out of that 
country. That was their proclaimed policy; and if that was 
encouraged amongst the other nations, even though they might 
not have wars in Europe, they would have the sort of thing that 
happened in the seventeenth and eighteenth centuries in India, 
when France and Great Britain were at war in India, whilst being 



88 STATUS OF ISLANDS IN PACIFIC OCEAN 

fairly good friends in Europe. Then they were always raising 
great native armies against each other. That must now be 
stopped. There was nothing in this document which prevented 
France doing what she did before. The defense of the territory 
was provided for. 

" M. Clemenceau said that if he could raise troops, that was all 
he wanted. 

" Mr. Lloyd-George replied that he had exactly the same power 
as previously. It only prevented any country drilling the natives 
and raising great armies. 

" M. Clemenceau said that he did not want to do that. All 
that he wished was that the matter should be made quite plain, 
and he did not want anybody to come and tell him afterwards 
that he had broken away from the agreement. If this clause 
meant that he had a right of raising troops in case of general 
war, he was satisfied. 

" Mr. Lloyd-George said that so long as M. Clemenceau did not 
train big nigger armies for the purposes of aggression; that was all 
the clause was intended to guard against. 

" M. Clemenceau said that he did not want to do that. He 
therefore understood that Mr. Lloyd-George's interpretation was 
adopted. 

" President Wilson said that Mr. Lloyd-George's interpretation 
was consistent with the phraseology. 

" M. Clemenceau said that he was quite satisfied." (The 
Origin of the Mandate System, 6 Foreign Affairs, January, 1928, 
p. 288.) 

Recruiting of inhabitants of mandates. — In June, 1926, 
the Council of the League of Nations reaffirmed the views 
of the permanent mandates commission : 

Military recruiting. — With regard to the question of recruiting, 
the permanent mandates commission, at its third session (1923), 
expressed the opinion that — 

" The spirit, if not the letter, of the mandate would be violated 
if the mandatory enlists the natives of the mandated territory 
(wherever they may present themselves for engagement) for serv- 
ices in any military corps or body of constabulary which is not 
permanently quartered in the territory and used solely for its 
defense or the preservation of order within it." (Monthly Sum- 
mary, VI, 6, p. 148.) 

The question of recruiting was discussed in the meet- 
ings of the commission. On June 26, 1925, the records 
state : 



RECRUITING IN MANDATES 89 

M. Van Rees wished to put three questions of a general nature 
to the commissioner of the French Republic. 

In regard to the military organization in the French mandated 
territories, he recalled that last year the secretary had distributed 
to the commission certain documents containing extracts from 
various Swedish and other newspapers which were agitated by an 
official report presented to the French Chamber of Deputies on the 
subject of the sources of recruitment of natives in the French 
colonies. This document referred not only to the colonies but 
also to the mandated territories. It was stated in particular that 
"the future international situation of this possession (the Cam- 
eroons) should enable France to draw on it for military obliga- 
tions demanded from the French possessions in Africa." Further, 
" the colonies should supply France with a native army methodi- 
cally recruited, minutely organized, and specially trained. In a 
future conflict France should, contrary to what occurred in 1914, 
have this weapon ready to hand, etc." 

He wished to know whether the suggestions made in this report 
had had any practical result and added that he had in mind the 
special clauses in the mandates for Togoland and the Cameroons 
regarding military recruitment. 

M. Duchene thanked M. Van Rees for raising this question, 
which dealt with an observation he had himself desired to make 
to the commission. As mentioned by M. Van Rees, the mandates 
for Togoland and the French Cameroons contained a special clause 
permitting France to utilize in a general war the public forces 
recruited in the Cameroons or Togoland. By reason of these 
provisions, the French military authorities had considered that 
they should maintain the public forces of French West or equa- 
torial Africa, and the two mandated territories under the same 
command, with the formal reservation that in peace time the 
soldiers recruited in Togoland and the Cameroons should be ex- 
clusively employed in these two territories. This conclusion, 
which was only an apparent one, between the military organiza- 
tion of the French African colonies and the two mandated terri- 
tories having attracted some attention, the French Government 
wished to remove any misunderstanding. 

By virtue of a measure which applied from January 1 of this 
year and which in consequence did not appear in the report of 
1924, a complete distinction had been made between the native 
soldiers who might be recruited in Togoland and the Cameroons 
to be employed there in peace time and French native troops 
recruited elsewhere. Since that date these forces were not only 
no longer shown on the French budget but they constituted a sepa- 

9855—31 7 



90 STATUS OF ISLANDS IN PACIFIC OCEAN 

rate militia absolutely distinct from the French native colonial 
army. In Togoland the commissioner of the French Republic 
had gone still further and considered that this public force might 
be dispensed with. This removed all confusion, both apparent 
and real, between the forces recruited in the Cameroons and in 
Togoland and the French colonial army in general. * * * 

M. Bonnecarrere added further details to the explanations 
given by M. Duchene, and stated that in 1923 one of the two com- 
panies that then existed in Togoland had been sent to Dahomi, 
but, in order scrupulously to observe the clauses of the mandate, 
the soldiers of this company that were natives of Togoland were 
withdrawn from the troop and attached to the company sta- 
tioned in the north of the territory. 

Further, as had been stated by the accredited representative 
of the French Government, the last company that existed in 
Togoland had been disbanded thanks to the state of security 
existing in the territory. There were at the present moment no 
military forces in Togoland. There existed only a police force 
which was in no w T ay intended for military purposes, but was 
employed exclusively for civil duties and the maintenance of the 
internal security of the territory and so on. (Minutes, Permanent 
Mandates Commission, C. 386, M. 132, 1925, VI, p. 15.) 

Mandates and war. — The question of sovereignty of 
mandated areas is not involved because areas become 
liable in time of war not by virtue of sovereignty over 
the area but by virtue of authority exercised within the 
area. In an area under belligerent occupation the sover- 
eignty may reside in the belligerent on the offensive, in 
the belligerent on the defensive, or even in a neutral as in 
the Russo-Japanese War, yet, if occupied by one bellig- 
erent, the nonoccupying belligerent may treat the terri- 
tory as hostile area for purposes of the war. 

The status of class C mandates in time of war has been 
much discussed. Manifestly an area merely a mandate 
could not issue a proclamation of neutrality or a declara- 
tion of war for the mandate is to be administered under 
the mandatory's laws as an integral portion of the man- 
datory. It is difficult to conceive how if the mandatory 
by law declares war or proclaims neutrality this applies 
only to a part of the area under its administrative con- 
trol and oyer which no other state has control. There 



THE U SUDMAEK '* 91 

may be restrictions accepted by the mandatory on taking 
over the control and these should be strictly construed. 
The islands under class C mandates were to a degree de- 
militarized, but they were not neutralized. This is evi- 
dent from the terms of the mandate which permit train- 
ing of the natives for local defense. In a treaty specific 
clauses prevail against general. 

The " Sudmark" — On August 15, 1914, the German 
steamship Sudmark was captured by a British vessel of 
war in the Ked Sea, The Sudmark was brought through 
the Suez Canal to Alexandria in Egypt. In the judgment 
of the judicial committee of the privy council, it was said : 

Seizures as prize are made by executive officers of the Crown in 
the exercise of the Crown's belligerent rights. The duties of these 
executive officers toward the owners of the property seized are the 
duties of the sovereign, and fall to be determined by international 
law. On the other hand, the duties of these executive officers 
toward the Crown must be determined by municipal law. (1917 
A. C, p. 620.) 

Prize court jurisdiction was conferred upon the British 
court in Egypt by an act of Parliament of September 18, 
1914, and by an order in council of September 30, 1914. 
Great Britain proclaimed Egypt a protectorate Decem- 
ber 18, 1914. 

In the case of the Sudmark, question was raised in 
regard to bringing the ship to a proper port and the 
judgment stated : 

The convenience of the port to which a prize is brought in for 
adjudication must be determined by all the circumstances of the 
case. Neutral ports are not convenient ports, for it is arguable 
that a neutral power could not allow a prize to remain in its 
ports — except temporarily, and then only by reason of special 
circumstances such as stress of weather or want of provisions — 
without committing a breach of neutrality ; and, further, it might 
be difficult to execute the order of the prize court of the captors 
over vessels in a neutral port. Other things being equal, the near- 
est available port should be preferred. A ship captured in the 
English Channel ought not as a rule to be taken to Gibraltar. 
It would be unreasonable to subject her to the risk of so long a 
voyage. But, as between various home ports, it would be quite 



92 STATUS OF ISLANDS IN PACIFIC OCEAN 

proper to select the least congested port, or tlie port the voyage 
to which, although longer, would involve less danger from the 
risks incident to war. A convenient port must be such that the 
property can remain there in safety without being exposed to 
special risk from wind or tide. It should be capable of accom- 
modating vessels of the draft of the captured ship. The real 
point to be considered is the safety of the prize and the distance 
of the place where the prize court holds its sittings from the port 
selected is immaterial. 

To the question whether Alexandria was a convenient port to 
which the Sudmark might properly be brought after her capture, 
their lordships, without hesitation, return an affirmative answer. 
(Ibid.) 

Doubtful status. — There have arisen from time to time 
controversies in regard to areas where a belligerent state 
exercised authority even though not sovereign. It would 
seem difficult to reconcile claims sometimes made that 
would imply that an area might at the same time have a 
belligerent and a neutral status. Such claims have been 
made for areas in southeastern Europe as in regard to the 
island of Cyprus. 

During the World War the question arose in the case 
of the Gutenfels as to whether Egypt, because of its rela- 
tion to Great Britain, would be regarded as belligerent 
or neutral. This question in 1916 came before the judicial 
committee of the privy council, which said: 

Secondly, the question has been argued whether Port Said was, 
within the meaning of The Hague convention, an " enemy port," 
that is, a port enemy to Germany. Having regard to the relations 
between Great Britain and Egypt, to the anomalous position of 
Turkey, and to the military occupation of Egypt by Great Britain, 
their lordships do not doubt that it was. In Hall's International 
Law (6th ed., p. 505) the learned author writes: 

" When a place is militarily occupied by an enemy the fact that 
it is under his control, and that he consequently can use it for 
the purposes of his war, outweighs all considerations founded on 
the bare legal ownership of the soil." 

Their lordships think this to be right. (1916, 2 A. 0. 113.) 

Hall further says : 

In like manner, but with stronger reason, where sovereignty 
is double or ambiguous a belligerent must be permitted to fix 



UNITED STATES AND MANDATES 93 

his attention upon the crude fact of the exercise of power. He 
must be allowed to deal his enemy blows wherever he finds him in 
actual military possession, unless that possession has been given 
him for a specific purpose, such as that of securing internal tran- 
quillity, which does not carry with it a right to use the territory 
for his military objects. On the other hand, where a scintilla of 
sovereignty is possessed by a belligerent state over territory where 
it has no real control an enemy of the state, still fixing his atten- 
tion on facts, must respect the neutrality with which the territory 
is practically invested. (International Law, 8th ed., p. 607.) 

United States cmd mandates. — There has been much 
diplomatic correspondence in regard to the relation of 
the United States to mandates. The United States has 
concluded treaties in regard to mandates with powers 
holding mandated areas in Africa, Asia Minor, and the 
Pacific. 

In Article I of the treaty of February 11, 1921, the 
United States consented to the administration by Japan 
of mandates. The United States has in this treaty ob- 
tained some special privileges in this mandated area, im- 
plying (as the treaty was made in the presence of the 
three other principal allied and associated powers) 
Japan's competence to grant this exceptional footing. 
As there are no treaty provisions for change of status 
in time of war, the right of jurisdiction and administra- 
tion in peace and in war is involved and the mandated 
area has become assimilated with the status of the man- 
datory. Even the right of eminent domain is recognized, 
as in Japan, so far as the area of Yap is concerned. 

The treaty of February 6, 1922, supplementary to the 
four-power treaty of December 13, 1921, specifically ex- 
tends the provisions of the four-power treaty to areas 
under Japanese sovereignty, as Formosa, and provides a 
like status as regards the treaty for the mandated islands. 
The four-power treaty itself relates by its terms to 
" insular possessions and insular dominions in the region 
of the Pacific Ocean." 

Sovereignty over an area under a mandate is not neces- 
sary for the determination of its neutrality as the status 



94 STATUS OF ISLANDS IN PACIFIC OCEAN 

of an area is based upon jurisdictional control whether 
in time of peace or in time of war, as in the case of mili- 
tary occupation. In the terms of the mandate there is a 
restriction on the establishing of naval bases and fortifi- 
cations but probably this would not be presumed to ex- 
tend to a time of war when this might be necessary for 
the defense of the islands and the existence therein of the 
rights which the mandatory has agreed to maintain. In 
the treaty of 1922 limiting naval armaments there are 
provisions (Art. XIX) in regard to fortifications and 
naval bases in nonmandated areas. 

The United States does not receive its rights with re- 
gard to the mandated areas under the same conditions as 
the powers members of the League of Nations, but the 
rights of the United States are defined by the treaties as 
to Yap. Japan has with the knowledge of the other 
powers independently negotiated with the United States 
a treaty as to the mandates north of the Equator. In the 
declaration accompanying the four-power treaty it is spe- 
cifically provided that the making of the treaty " shall 
not be deemed to be an assent on the part of the United 
States of America to the mandates and shall not preclude 
agreements between the United States of America and 
the mandatory powers, respectively, in relation to the 
mandated islands." 

In the case of differences as to the islands of the Pa- 
cific, the parties under the four-power treaty have agreed 
to a joint conference " to which the whole subject will be 
referred for consideration and adjustment." 

While the status of islands under mandates is not 
clearly defined, it is clear that it is not the same as at the 
time of the World War under the sole control of the' 
individual states. There were other changes in status 
and relations introduced by the Washington treaties of 
1922. 

Area wider Article XIX. — By the terms of the treaty 
limiting naval armament of 1922 the islands forming a 
chain beyond the Hawaiian group to and including the 



FOBTIFICATIOSTS LN" PACIFIC . 95 

Philippines were to maintain the status quo as naval 
bases. These islands between the Hawaiian Islands and 
the Philippines have an area of a little more than 800 
square miles. The number of these islands is about 
1,400, many being merely exposed rocks, and they dot 
an area extending east and west about 2,500 miles. As 
regards the Pacific, some of these are strategically located 
if they may lawfully be used for war. So far as those 
islands which formerly belonged to Germany, they are 
under mandates of the type of class C to be " adminis- 
tered under the laws of the mandatory as integral por- 
tions of its territory " and the mandatory is Japan. 

Fortifications in the Pacific. — In discussion of the 5-5-3 
ratio for the limitation of armament in 1921-22 it was 
realized that the limitation of ships was related to the 
limitation of bases. In the report of the American dele- 
gation submitted to the President, February 9, 1922, it 
was stated : 

Before assenting to this ratio the Japanese Government desired 
assurances with regard to the increase of fortifications and naval 
bases in the Pacific Ocean. It was insisted that while the capital- 
ship ratio proposed by the American Government might be accept- 
able under existing conditions it could not be regarded as accept- 
able by the Japanese Government if the Government of the 
United States should fortify or establish additional naval bases 
in the Pacific Ocean. 

The American Government took the position that it could not 
entertain any question as to the fortification of its own coasts or 
of the Hawaiian Islands, with respect to which it must remain 
entirely unrestricted. Despite the fact that the American Gov- 
ernment did not entertain any aggressive purpose whatever, it 
was recognized that the fortification of other insular possession 
in the Pacific might be regarded from the Japanese standpoint as 
creating a new naval situation, and as constituting a menace to 
Japan, and hence the American delegation expressed itself as 
willing to 'maintain the status quo as to fortifications and naval 
liases in its insular possessions in the Pacific, except as above 
stated, if Japan and the British Empire would do the like. 
It was recognized that no limitation should be made with re- 
spect to the insular possessions adjacent to the coast of the 



96 • STATUS OF ISLANDS IN PACIFIC OCEAN 

United States, including Alaska and the Panama Canal Zone or 
the Hawaiian Islands. The case of the Aleutian Islands, stretch- 
ing out toward Japan, was a special one and had its counterpart 
in that of the Kurile Islands belonging to Japan and reaching out 
to the northeast toward the Aleutians. It was finally agreed that 
the status quo should be maintained as to both these groups. 
(1921, N. W. C, Int. Law Documents, p. 265.) 

Washington treaties and non^ignatories. — The treaties 
drawn up at the Washington Conference on the Limita- 
tion of Armament in 1921-22 were, as are other treaties 
after ratification, binding upon the signatories. At the 
meeting of the committee on limitation of armament, 
January 31, 1922, the so-called submarine treaty was 
under discussion. 

Mr. Balfour said that he was much embarrassed about this. 
He agreed, of course, to the substance of all the chairman had 
read. There was a question, however, that he would like to ask 
Mr. Root. He asked if that would be in order and was assured 
that it would. 

Continuing, Mr. Balfour said the question had been raised that 
morning at a meeting of the British Empire delegation, and the 
point was this : The proposed treaty seemed to be perfectly clear 
and satisfactory as between the powers represented at this table. 
The difficulty was as follows : He was afraid it was very easy to 
conceive a case in which, for instance, one of the five powers rep- 
resented around this table might be at war with another signa- 
tory power having as an ally some nation not agreeing to the 
treaty. An ambiguous and difficult situation would result. He 
would like Mr. Root's opinion upon a point which seemed, at 
least to some of his friends, not to be without difficulty and em- 
barrassment. The apparent difficulty would be almost unthink- 
able. It would mean one of these countries represented at this 
table being at war with another power at the table, who had an 
ally not represented at the table. He did not mean to press the 
matter, but he was given to understand that that was a point 
that was in the minds of many. He did not think it had received 
much consideration, and as the treaty would have to run the 
gauntlet of many severe criticisms, like other treaties, he would 
like to know what Mr. Root's advice on the point was. 

Mr. Root said he thought that was one of the things which it 
was quite impossible to provide for in the treaty. No agreement 
could be made in the application of which questions would not 



WASHINGTON TREATIES, 19 2 2 97 

arise in the future. If the members of the committee were to 
try to guard against all conceivable situations, to which this 
agreement between them was to be applied, they would make a 
treaty as long as the moral law. Now, they were making this 
treaty between themselves and they must assume that it would 
be carried out in good faith. If another power that was not 
bound by the treaty should come along and create a situation to 
which the treaty did not apply, then it would not apply ; but that 
would have to be determined by the conditions and the facts as 
they arose. He could not believe that there would be any real 
embarrassment. 

Mr. Balfour said that he would not press the matter. 

Senator Schanzer stated that the Italian delegation shared the 
anxieties to which Mr. Balfour referred, and he thought that he 
had raised very opportunely the question concerning the execu- 
tion of the treaty in the case of war with a power which had 
neither signed nor adhered to the treaty itself. If one of the five 
great signatory powers should find itself at war with another of 
the five signatory powers and the latter should be allied with a 
nonsignatory or nonadherent power, it was clear that the first- 
mentioned power could not afford to find itself bound by the 
duties imposed by the treaty. In effect, the nonsignatory or non- 
adherent power would be free to make unlimited use of subma- 
rines, poisonous gases, etc., and would do it not only in its own 
interest, but also in the interest of the great powers to which it 
was allied. He wished to repeat that, in these conditions, it was 
clear that the execution of the provisions of the treaty would 
cease to be effective. He could agree with Mr. Root that it was 
not absolutely indispensable to provide for this case by a special 
stipulation in the treaty, but it was nevertheless desirable that 
the interpretation given that day should be registered in the 
minutes of the committee. (Conference on the Limitation of 
Armament, p. 840.) 

Interpretation of Washington treaties of 1921-22. — It 
is a general principle that treaties be interpreted in the 
sense in which they are made and when different words 
are used in the same treaty or in the same negotiation 
the presumption is that a different meaning is intended. 

By article 119 of the treaty of Versailles, June 29, 
1919, Germany renounced in favor of the principal al- 
lied and associated powers all her rights and titles over 
her oversea possessions. 



98 STATUS OF ISLANDS IN PACIFIC OCEAN 

In the treaty between the United States and Japan 
signed February 11, 1922, and relating to the former 
German islands in the Pacific there is the statement: 

Considering that the benefits accruing to the United States un- 
der the aforesaid article 119 of the treaty of Versailles were con- 
firmed by the treaty between the United States and Germany, 
signed on August 25, 1921, to restore friendly relations between 
the two nations ; 

Considering that the said four powers, to wit, the British Em- 
pire, France, Italy, and Japan, have agreed to confer upon His 
Majesty the Emperor of Japan a mandate, pursuant to the treaty 
of Versailles, to administer the groups of the former German 
islands in the Pacific Ocean lying north of the Equator in ac- 
cordance with the following provisions: (Here follow the articles 
of the mandate.) 

Considering that the United States did not ratify the treaty of 
Versailles and did not participate in the agreement respecting 
the aforesaid mandate; 

Desiring to reach a definite understanding with regard to the 
rights of the two Governments and their respective nationals in 
the aforesaid islands, and in particular the island of Yap, have 
resolved to conclude a convention for that purpose and to that 
end have named as their plenipotentiaries: (Here follows names 
of plenipotentiaries. ) 

Who, after having communicated to each other their respective 
full powers, found to be in good and due form, have agreed as 
follows : 

ARTICLE I 

Subject to the provisions of the present convention, the United 
States consents to the administration by Japan, pursuant to the 
aforesaid mandate, of all the former German islands in the Pacific 
Ocean lying north of the Equator. 

ARTICLE II 

The United States and its nationals shall receive all the benefits 
of the engagements of Japan, defined in articles 3, 4, and 5 of the 
aforesaid mandate, notwithstanding the fact that the United 
States is not a member of the League of Nations. 

It is further agreed between the high contracting parties as 
follows : 

(1) Japan shall insure in the islands complete freedom of 
conscience and the free exercise of all forms of worship which 



WASHINGTON TREATIES, 192 2 99 

are consonant with public order and morality ; American mission- 
aries of all such religions shall be free to enter the islands and to 
travel and reside therein, to acquire and possess property, to 
erect religious buildings, and to open schools throughout the 
islands ; it being understood, however, that Japan shall have the 
right to exercise such control as may be necessary for the main- 
tenance of public order and good government and to take all 
measures required for such control. 

(2) Vested American property rights in the mandated islands 
shall be respected and in no way impaired. 

(3) Existing treaties between the United States and Japan 
shall be applicable to the mandated islands. 

(4) Japan will address to the United States a duplicate of the 
annual report on the administration of the mandate to be made 
by Japan to the Council of the League of Nations. 

(,5) Nothing contained in the present convention shall be 
affected by any modification which may be made in the terms of 
the mandate as recited in the convention, unless such modifica- 
tion shall have been expressly assented to by the United States. 
(42 U. S. Stat, pt. 2, p. 2149.) 

By Article II (3) "existing treaties between the 
United States and Japan shall be applicable to the man- 
dated islands." Ratifications of this treaty were ex- 
changed July 13, 1922, and the treaty was proclaimed the 
same day. The ratifications of the treaty on limitation 
of naval armament were deposited August 17, 1923, and 
this treaty was proclaimed August 21, 1923, but the effect 
of Article XIX in regard to the maintenance of the 
status quo was by the terms of the article to be effective 
from the signing not from the ratification and proclama- 
tion of the treaty. 

While the treaties were not for various reasons ratified 
at the same time, it was not because they were unrelated. 
The American delegation in submitting the treaties for 
ratification said : 

To estimate correctly the character and value of these several 
treaties, resolutions, and formal declarations they should be con- 
sidered as a whole. Each one contributes its part in combination 
with the others toward the establishment of conditions in which 
peaceful security will take the place of competitive preparation 
for war. 



100 STATUS OF ISLANDS IN PACIFIC OCEAN 

The declared object was, in its naval aspect, to stop the race 
of competitive building of warships which was in process and 
which was so distressingly like the competition that immediately 
preceded the war of 1914. Competitive armament, however, is 
the result of a state of mind in which a national expectation of 
attack by some other country causes preparation to meet the at- 
tack. To stop competition it is necessary to deal with the state 
of mind from which it results. A belief in the pacific intentions of 
other powers must be substituted for suspicion and apprehension. 

The negotiations which led to the four-power treaty were the 
process of attaining that new state of mind, and the four-power 
treaty itself was the expression of that new state of mind. It 
terminated the Anglo-Japanese alliance and substituted friendly 
conference in place of war as the first reaction from any contro- 
versies which might arise in the region of the Pacific ; it would 
not have been possible except as part of a plan including a limi- 
tation and a reduction of naval armaments, but that limitation 
and reduction would not have been possible without the new rela- 
tions established by the four-power treaty or something equivalent 
to it. (Conference on the Limitation of Armament, Senate Doc. 
No. 126, 67th Cong., 2d sess., p. 865.) 

Military organization in mandates. — A report upon 
military organization in mandates was made to the 
permanent mandates commission at its ninth session in 
1926 by M. Freire d'Andrade, of which the conclusions 
were as follows : 

I. The mandatory can not establish any naval or military base 
or erect any fortifications in the mandated territory. 

II. The mandatory may not train or organize any native forces 
except such as are necessary for police purposes and for the local 
defence of the territory. 

III. It is the duty of the permanent mandates commission to 
consider the conditions of military training and organization in- 
troduced by the mandatory and, if it considers such training or 
organization inadequate or excessive, to inform the council. 

IV. The mandatory has the right to employ the native military 
forces thus organized for the purpose of defending the mandated 
territory at a distance in the case of B mandates, but it can not 
do so in the case of C mandates. (Minutes, Permanent Mandates 
Commission, ninth session, C. 405, M. 144, 1926, VI, p. 194.) 

The discussion of this report showed in the commission 
some differences of opinion and an unwillingness to com- 



POSSESSIONS AND DOMINIONS 101 

mit in advance the commission to any interpretation, but 
to await a case which might involve the question. (Ibid, 
pp. 130-134.) 

Insular possessions in the Pacific. — The United States, 
the British Empire, France, and Japan at the Washing- 
ton conference, December 13, 1921, reached an agreement 
as to their insular possessions in the Pacific, which was 
embodied in a treaty, which states : 

I. The high contracting parties agree as between themselves 
to respect their rights in relation to their insular possessions and 
insular dominions in the region of the Pacific Ocean. 

If there should develop between any of the high contracting 
parties a controversy arising out of any Pacific question and in- 
volving their . said rights which is not satisfactorily settled by 
diplomacy and is likely to affect the harmonious accord now 
happily subsisting between them, they shall invite the other high 
contracting parties to a joint conference, to which the whole 
subject will be referred for consideration and adjustment. 

II. If the said rights are threatened by the aggressive action of 
any other power, the high contracting parties shall communicate 
with one another fully and frankly in order to arrive at an 
understanding as to the most efficient measures to be taken, jointly 
or separately, to meet the exigencies of the particular situation. 
(43-2 U. S. Stat., pt. 2, pp. 1646, 1648.) 

In signing this treaty it was declared to be the under- 
standing and intent — 

1. That the treaty shall apply to the mandated islands in the 
Pacific Ocean : Provided, hoivever, That the making of the treaty 
shall not be deemed to be an assent on the part of the United 
States of America to the mandates and shall not preclude agree- 
ments between the United States of America and the mandatory 
powers, respectively, in relation to the mandated islands. 

2. That the controversies to which the second paragraph of 
Article I refers shall not be taken to embrace questions which 
according to principles of international law lie exclusively within 
the domestic jurisdiction of the respective powers. (Ibid. 1650.) 

Insular possessions and insular dominions. — By the 
treaty signed by the United States, the British Empire, 
France, and Japan, on February 6, 1922, the same day 
upon which the treaty limiting naval armament was 



102 STATUS OF ISLANDS IN PACIFIC OCEAN 

signed, a definition of " insular possessions and insular 
dominions " was given : 

The term " insular possessions and insular dominions " used in 
the aforesaid treaty shall, in its application to Japan, include only 
Karafuto (or the southern portion of the island of Sakhalin), 
Formosa, and the Pescadores, and the islands under the mandate 
of Japan. 

While this treaty was supplementary to the 4-power 
treaty of December 13, 1921, it may be presumed that 
these words used in other treaties negotiated at the Wash- 
ington conference by the same powers had the similar 
meaning. In Article XIX of the treaty limiting naval 
armament the words used were " insular territories and 
possessions " instead of " insular possessions and insular 
dominions," and these are enumerated : 

(3) The following insular territories and possessions of Japan 
in the Pacific Ocean, to wit, the Kurile Islands, the Bonin Islands, 
Amami-Oshima, the Loochoo Islands, Formosa, and the Pesca- 
dores, and any insular territories or possessions in the Pacific 
Ocean which Japan may hereafter acquire. 

The enumeration above is specific with the addition of 
subsequent acquisitions. The enumeration in the 4-power 
treaty is also specific with the addition of " the islands 
under the mandate of Japan." It would seem to be clear, 
therefore, that the islands under mandatory of Japan are 
not necessarily included under Article XIX of the limita- 
tion of naval armament treaty. 

Insular territories, possessions, dominions. — In Article 
XIX of the treaty limiting naval armament the term 
iw insular possessions " is used in regard to the area within 
which the American and British Governments respec- 
tively agree to maintain the status quo. The term " in- 
sular territories and possessions " is used specifically in 
regard to the Japanese areas in the same treaty. The 
article also mentions Australia " and its territories," 
but in the four-power treaty of February 6, 1922, the 
term " insular possessions " seems to be applied as in 
the limitation of armament treaty to Formosa and the 



KELLOGG-BEIAND PACT 103 

Pescadores, while " insular dominions " applies to 
" islands under the mandate of Japan." 

Kellogg-Briand pact, 1928. — While the preamble of 
the treaty for the renunciation of war signed with much 
formality at Paris, August 27, 1928, is not contractual, 
it does state the object of the treaty. It is as follows : 

Deeply sensible of their solemn duty to promote the welfare of 
mankind ; 

Persuaded that the time has come when a frank renunciation 
of war as an instrument of national policy should be made to 
the end that the peaceful and friendly relations now existing 
between their peoples may be perpetuated ; 

Convinced that all changes in their relations with one another 
should be sought only by pacific means and be the result of a 
peaceful and orderly process, and that any signatory power 
which shall hereafter seek to promote its national interests by 
resort to war should be denied the benefits furnished by this 
treaty ; 

Hopeful that, encouraged by their example, all the other na- 
tions of the world will join in this humane endeavor and by 
adhering to the present treaty as soon as it comes into force bring 
their peoples within the scope of its beneficent provisions, thus 
uniting the civilized nations of the world in a common renuncia- 
tion of war as an instrument of their national policy ; 

In transmitting the treaty the United States had indi- 
cated that it did not impair (1) the right of self-defense, 
(2) the league covenant, (3) the Locarno pact, (4) neu- 
tralization treaties; that it implied (5) termination of 
relations with treaty-breaking states, (6) general ac- 
ceptance. In the reply of the French Government it was 
said of the interpretations given by the Government of 
the United States : 

These interpretations may be resumed as follows : 
Nothing in the new treaty restrains or compromises in any 
manner whatsoever the right of self-defense. Each nation in 
this respect will always remain free to defend its territory against 
attack or invasion; it alone is competent to decide whether cir- 
cumstances require recourse to war in self-defense. 

Secondly, none of the provisions of the new treaty is in oppo- 
sition to the provisions of the covenant of the League of Nations 
nor with those of the Locarno treaties or the treaties of neutrality. 



104 STATUS OF ISLANDS IN PACIFIC OCEAN 

Moreover, any violation of the new treaty by one of the con- 
tracting parties would automatically release the other contracting 
powers from their obligations to the treaty-breaking state. 

Finally, the signature which the Government of the United 
States has now offered to all the signatory powers of the treaties 
concluded at Locarno and which it is disposed to offer to all 
powers parties to treaties of neutrality as well as the adherence 
made possible to other powers is of a nature to give the new 
treaty, in as full measure as can practically be desired, the char- 
acter of generality which accords with the views of the Govern- 
ment of the Republic. 

The contractual articles of the treaty are as follows : 

Article 1. The high contracting parties solemnly declare in the 
names of their respective peoples that they condemn recourse to 
war for the solution of international controversies, and renounce 
it as an instrument of national policy in their relations with one 
another. 

Art. 2. The high contracting parties agree that the settlement 
or solution of all disputes or conflicts of whatever nature or of 
whatever origin they may be which may arise among them shall 
never be sought except by pacific means. 

Art. 3. The present treaty shall be ratified by the high con- 
tracting parties named in the preamble in accordance with their 
respective constitutional requirements and shall take effect as 
between them as soon as all their several instruments of ratifica- 
tion shall have been deposited at Washington. 

In discussing self-defense the Government of the 
United States said in the note of June 23, 1928 : 

There is nothing in the American draft of an antiwar treaty 
which restricts or impairs in any way the right of self-defense. 
That right is inherent in every sovereign state and is implicit in 
every treaty. Every nation is free at all times and regardless of 
treaty provisions to defend its territory from attack or invasion, 
and it alone is competent to decide whether circumstances require 
recourse to war in self-defense. If it has a good case the world 
will applaud and not condemn its action. Express recognition by 
treaty of this inalienable right, however, gives rise to the same 
difficulty encountered in any effort to define aggression. It is the 
identical question approached from the other side. Inasmuch as 
no treaty provision can add to the natural right of self-defense, 
it is not in the interest of peace that a treaty should stipulate a 
juristic conception of self-defense, since it is far too easy for the 
unscrupulous to mold events to accord with an agreed definition. 



CONCLUSION 105 

The treaty was considered at different times in the 
Senate of the United States, which on January 15, 1929, 
advised and consented to the ratification of the treaty. 
In submitting the treaty to the Senate the Committee 
on Foreign Relations said : 

The treaty in brief pledges the nations bound by the same not 
to resort to war in the settlement of their international contro- 
versies save in bona fide self-defense and never to seek settlement 
of such controversies except through pacific means. It is hoped 
and believed that the treaty will serve to bring about a sincere 
effort upon the part of the nations to put aside war and to employ 
peaceful methods in their dealing with each other. 

The committee reports the above treaty with the understanding 
that the right of self-defense is in no way curtailed or impaired 
by the terms or conditions of the treaty. Each nation is free at 
all times and regardless of the treaty provisions to defend itself, 
and is the sole judge of what constitutes the right of self-defense 
and the necessity and extent of the same. (70 Cong. Record, 
p. 1730.) 

CONCLUSION 

No exact interpretation of agreements relating to 
islands in the Pacific Ocean and entered into since 1917 
has been made. The introduction of the system of man- 
dates under article 22 of the covenant of the League of 
Nations, 1919, the restrictions of fortifications by article 
19 of the treaty limiting naval armament, 1922, and the 
other agreements, and the declaration of the Washington 
conference, 1922, as well as the Kellogg-Briand pact of 
1928, have, however, greatly modified the status of 
the islands in the Pacific Ocean as areas of possible 
belligerent action. 

9855 — 31 8 



Situation III 

NEUTRAL OBLIGATIONS 

States X.and Y are at war. Other states are neutral. 

(a) State D in its proclamation of neutrality forbids 
entrance to its waters to all belligerent vessels except 
strictly private merchant vessels upon the surface. 

(1) The West Wind, a passenger vessel belonging to a 
citizen of state X, having on board among its passengers 
100 soldiers on its regular voyage along the coast passes 
within 3 miles of D and is there seized by a vessel of war 
of D and the vessel and soldiers are interned. 

(2) The Porpoise, a submarine belonging to state Y, 
but engaged in merchant service, is caught in a net 1 mile 
offshore of D and enters a port of D in distress. The port 
authorities intern the submarine. 

(3) The East Wind, a merchant vessel belonging to a 
private citizen of Y, is captured by a cruiser of X and a 
prize crew is put on board. The radio upon the East 
Wind becomes disabled and the vessel enters a port of 
D. The authorities of D intern the prize crew, allow the 
repairs, and release the East Wind. 

(b) State E has merely declared that it would main- 
tain its neutrality. 

(1) The Athens, a merchant vessel owned by a citizen 
of state F, sails from a port of E, having cleared for its 
home port. En route and on the high seas the Athens 
meets war vessels of X and sells to these vessels the fuel 
and provisions which it has on board. The Athens then 
returns to state E and takes on board fuel and provisions 
to replace those sold. 
106 



NEUTRALITY PROCLAMATIONS, 1914-1918 107 

(2) The King, one of the vessels of war of Y, enters 
a port of E and the commanding officer goes ashore and 
sends to and receives from the fleet outside through the 
regular radio station messages in regard to the war. 

(3) The second day afterwards the Prince, another ves- 
sel from the fleet, enters the same port and its command- 
ing officer sends and receives similar messages as well as 
ordinary cable messages. 

States X and Y, when adversely affected, protest that 
their rights under the laws of neutrality have not been 
respected. Are the protests well grounded ? Why ? 

SOLUTION 

(a) (1) The protest of state X against the action of 
state D both as regards the removal of the soldiers and 
the internment of the West Wind is valid. 

(2) The protest of state Y against the internment of 
the submarine, the Porpoise, is not valid. 

(3) The protest of state X against the action of state 
D in interning the prize crew on the East Wind and 
allowing repairs and release of the vessel is not valid. 

(h) (1) The protest of state Y against the furnishing 
of fuel and provisions within a period of three months in 
state E to the At kens is valid. 

(2) The protest of state X against the toleration by 
state E of such use of radio by the commanding officer 
of the King is valid. 

(3) The protest of state X against the toleration by 
state E of such use of the radio by the commanding officer 
of the Prince is valid. 

The protest against the use of the submarine cable is 
not valid, though censorship may be requested. 

NOTES 

Proclamiations of neutrality, 1911^-1918. — During the 
World War, 1914-1918, the nature of the proclamations 
of neutrality varied greatly. Some were brief and gen- 



108 NEUTRAL OBLIGATIONS 

eral in their terms; others were of great length and de- 
tailed in their specifications, and sometimes explanatory 
notes followed these specifications. Special proclama- 
tions were issued from time to time as new conditions 
seemed to demand. 

The declaration issued by Spain, August 7, 1914, was 
brief, announcing the fact that certain states were at war 
and prescribing for " Spanish subjects the strictest neu- 
trality in conformity with the laws in force and the 
principles of public international law," and putting into 
operation certain parts of the Spanish penal code. Other 
decrees later made operative certain Hague conven- 
tions, etc. 

The Netherlands declaration of neutrality of August 
5, 1914, contained 18 articles. The eighteenth article 
called attention to the articles of codes and to legislation. 
The Netherlands, being surrounded by belligerents, neces- 
sarily found the problem of maintenance of neutrality 
difficult, and explicit provisions were essential. 

Even on the coasts of the Americas the problems of 
maintaining neutral rights became so acute that sugges- 
tions were made that there be concerted action by the 
neutral American states. (Memorandum, Peruvian Min- 
ister for Foreign Affairs, November, 1914; 1914 For. 
Eel. Sup. p. 442.) It was suggested that a congress of 
neutrals be summoned. 

Netherlands declaration, 191J+. — The Netherlands dec- 
laration of neutrality of August 5, 1914, is owing to the 
geographical situation, naturally strict and definite. The 
right of the Netherlands to enforce regulations so strict 
in nature was questioned by belligerents, but the Nether- 
lands Government remained firm. The declaration 
provided : 

Article 1. "Within the limits of the territory of the State, in- 
cluding the territory of the Kingdom in Europe and the colonies 
and possessions in other parts of the world, no hostilities of any 
kind are permitted, neither may this territory serve as a base 
for hostile operations, 



NETHEKLANDS DECLARATION, 1914 109 

Art. 2. Neither the occupation of any part of the territory of 
the state by a belligerent nor the passage across this territory by 
land is permitted to the troops, or convoys of munitions belonging 
to the belligerents, nor is the passage across the territory situated 
within the territorial waters of the Netherlands by the warships or 
ships assimilated thereto of the belligerents permitted. 

Art. 3. Troops or soldiers belonging to the belligerents or 
destined for them arriving in the territory of the state by land 
will be immediately disarmed and interned until the termination 
of the war. 

Warships or ships assimilated thereto belonging to a belligerent 
who contravenes the provisions of articles 2, 4, or 7 will not be 
permitted to leave the said territory until the end of the war. 

Art. 4. No warships or ships assimilated thereto belonging to 
any of the belligerents shall have access to the said territory. 

Art. 5. The provisions of article 4 do not apply to — ■ 

1. Warships or ships assimilated thereto which are forced to 
enter the ports or roadsteads of the state on account of damages 
or the state of the sea. Such ships may leave the said ports or 
roadsteads as soon as the circumstances which have driven them 
to take shelter there shall have ceased to exist. 

2. Warships or ships assimilated thereto belonging to a bel- 
ligerent which anchor in a port or roadstead in the colonies or 
oversea possessions exclusively with the object of completing their 
provision of foodstuffs or fuel. These ships must leave as soon 
as the circumstances which have forced them to anchor shall have 
ceased to exist, subject to the condition that their stay in the 
roadstead or port shall not exceed 24 hours. 

3. Warships or ships assimilated thereto belonging to a bel- 
ligerent employed exclusively on a religious, scientific, or humani- 
tarian mission. * * * 

Art. 17. The state territory comprises the coastal waters to a 
distance of 3 nautical miles, reckoning 60 to the degree of lati- 
tude, from low-water mark. 

As regards inlets, this distance of 3 nautical miles is measured 
from a straight line drawn across the inlet at the point nearest 
the entrance where the mouth of the inlet is not wider than 10 
nautical miles, reckoning 60 to the degree of latitude. (1916 
N. W. C, Int. Law Topics, p. 61.) 

(a) (1) Transport of forces. 

Trcmsit of reservists. — Neutral obligations in regard to 
the carriage of persons who might serve or probably 
would serve in the armed forces of a belligerent have long 
been matters of discussion. As early as August 8, 1914, 



110 NEUTRAL OBLIGATIONS 

the French charge d'affaires in a communication to the 
Secretary of State said : 

I hear that the collector of customs at New York has sent to 
our consul general a communication according to which " all that 
could be utilized for the army, either men or supplies," will be 
considered as contraband. 

If in accord with a decision of the Federal Government, that 
communication seems to me to call for the most express reser- 
vations : 

1. The law of nations can not stand in the way of the citizens of 
a country at war discharging their most sacred duty. Besides, at 
the time of the Balkan wars, large numbers of reservists returned 
to their country by groups without any objection being raised. 
(1914, For. Rel., Sup., p, 557.) 

The Secretary of State replied that there must be a 
mistake, as the Federal Government had made no such 
decision, and, further, it was said: 

Replying, I beg to say that this situation must have resulted 
from mistake somewhere, or must have been the result of extra 
precautions at the beginning of European hostilities to prevent the 
outfitting of ships for use in war or military expeditions or enter- 
prises from the United States in violation of her neutrality. I 
hardly think that the collector of customs was acting under 
instructions, if he made such a declaration as that attributed to 
him. That declaration is not the decision of the Federal Gov- 
ernment, which is neither interested nor inclined in having sup- 
plies considered contraband of war on the ground that they could 
be utilized for the army or military forces of the belligerents. 
On the contrary, it is and has been the hope of this department 
that the Governments unhappily at war in Europe will make 
liberal declarations respecting contraband, to the end that inter- 
national commerce may suffer the least possible hardships during 
the existence of hostilities. This department has advised the 
trade in this country that cereals, and foodstuffs generally, will 
constitute contraband of war only when destined to the army or 
navy or some department of government of one of the belligerents. 
This Government will not, of course, seek to unnecessarily restrict 
the commerce of its citizens with those of the nations at war, or 
to extend contraband so as to Include foodstuffs or supplies, 
merely on the ground that they are adaptable to the uses of 
war. 

I hand you herewith instructions to the collectors of customs, 
issued by the Secretary of the Treasury on August 8 [10], 1914, 
and call your attention to their provisions, which, as you will oh- 



TRANSIT OF RESERVISTS 111 

serve, are not in accord with the communication which the 
consul general says he has received from the collector of customs 
at New York. 

Replying to the other grounds of your exceptions, no resistance, 
within the knowledge of this department, has been offered to 
reservists in the army of any of the belligerents wishing to leave 
this country for military service in their native lands, whether 
such reservists leave singly or in numbers. It is believed that 
the only restriction upon the departure of citizens of any of the 
countries of war for service in the army is to be found in the 
neutrality laws of the United States, embodied in the proclama- 
tion of the President, prohibiting the " beginning or setting on 
foot or providing or preparing the means for any military expe- 
dition or enterprise to be carried on from the territory or juris- 
diction of the United States against the territories or dominions 
of either of the said belligerents." What constitutes a military 
expedition or enterprise either begun or set on foot in this country 
has been the subject of some judicial determination by the courts 
of the United States; and, while it is not deemed necessary to 
point to these decisions at this time, it may be said generally 
that return from the United States to their native lands by citi- 
zens of foreign countries, though to enter military service there, 
whether their departure is singly or in numbers, is not illegal or 
in violation of the neutrality of the United States, unless ac- 
companied by other circumstances evidencing the beginning or 
setting on foot, or providing or preparing the means for a mili- 
tary expedition or enterprise from the territory or jurisdiction 
of the United States against the territories or dominions of one 
of the belligerents. It is the purpose of this Government to ob- 
serve complete neutrality in the war now being waged by Eu- 
ropean countries; but it is not deemed necessary to adopt means 
or to apply regulations which are not demanded by the neutrality 
laws of the United States or the rules of international law. 
(Ibid., p. 558.) 

In subsequent correspondence questions were raised in 
regard to the carriage on neutral vessels either as crew 
or passengers of persons liable to military service in a 
belligerent country. The United States made it clear 
that the right to arrest such persons on the high seas un- 
less they were already enrolled in the forces of a bellig- 
erent would not be admitted. The fitting out or setting 
on foot of a military expedition in the United States was 
prohibited. 



112 NEUTRAL OBLIGATIONS 

The question as to whether reservists might be per- 
mitted to pass through the United States was raised 
early in the World War. In a telegram of the Secretary 
of State to the consul general at Vancouver, August 13, 
1914, it was explained that — 

Neither the neutrality laws of the United States nor proclama- 
tion of the President prohibit passage through the United States 
of reservists who are returning to their respective countries for 
the purpose of military service, when the circumstances of their 
transit do not amount to the beginning or setting on foot or pro- 
viding or preparing the means for any military expedition or 
enterprise to be carried on from the territory or jurisdiction of 
the United States. If such reservists are organized and armed 
and so manifest the existence of a military expedition or enter- 
prise, they are not entitled to transit through the United States. 
(1914 For. Rel. U. S. Sup., p. 564.) 

Information to similar intent was given to the diplo- 
matic representatives of the belligerent powers and later 
it was also stated that the governments availing them- 
selves of this permission should preserve the United 
States against such reservists or others becoming a public 
charge. 

Innocent passage. — Of innocent passage in general the 
report of the Research in International Law, Harvard 
Law School, proposed the following: 

ARTICLE 14 

A state must permit innocent passage through its marginal seas 
by the vessels of other states, but it may prescribe reasonable 
regulations for such passage. 

In supporting this article the report said : 

Notwithstanding the fact that the sovereignty of a state extends 
over its marginal sea, the state may not prevent the innocent 
passage of vessels of other states through such waters, free of all 
tolls, light dues, or other exactions. This recognition of the right 
of innocent passage is the result of an attempt to reconcile the 
existence of sovereignty over marginal seas with the freedom of 
navigation on the high seas. In inland waters the right of 
innocent passage is not recognized. 

It seems necessary to include in the convention a definition of 
" innocent passage." It should, perhaps, be observed that inno- 



INNOCENT PASSAGE 113 

cent passage is not necessarily restricted to voyages between desti- 
nations outside the littoral state, although the vessel of another 
state is not in innocent passage when she is approaching the 
port of a state through its marginal seas or when she is entering 
or leaving a port of that state. For example, a British vessel 
leaving New York for Galveston may be in innocent passage 
when traversing the marginal sea off the Florida coast, but would 
not be in innocent passage when traversing the marginal sea 
upon leaving New York and approaching Galveston. 

The word " vessels " in article 14 is limited by the definition 
in article 22, thus confining innocent passage to vessels which are 
privately owned and privately operated and to vessels the legal 
status of which is assimilated to that of such vessels. This 
excludes vessels of war from exercising the right of innocent 
passage. The sovereignty of the littoral state is restricted by 
the right of innocent passage because of a recognition of the 
freedom of the seas for the commerce of all states. There is, 
therefore, no reason for freedom of innocent passage of vessels 
of war. Furthermore, the passage of vessels of war near the 
shores of foreign states and the presence without prior notice of 
vessels of war in marginal seas might give rise to misunder- 
standing even when they are in transit. Such considerations seem 
to be the basis for the common practice of states in requesting 
permission for the entrance of their vessels of war into the ports 
of other states. A state may permit the passage of the war ves- 
sels of other states through its marginal sea, but the text relieves 
it from any obligatiion to do so. It might properly be assumed 
that a state does permit such passage when no action has been 
taken by that state regulating it. Even for vessels entitled to 
exercise the right of innocent passage it is obviously necessary 
that each state should be permitted to make reasonable regula- 
tions governing that passage, subject only to the restriction that 
these regulations be uniform for all states. Such regulations 
may, of course, distinguish between different kinds of vessels. 
For example, a littoral state might require all submarine vessels 
of other states to navigate upon the surface in order that shipping 
in the marginal sea may not be subjected to unknown risks. (23 
A. J. I. L. Spec. Sup., [April, 1929], p. 295.) 

SOLUTION 

(a) (1) The protest of state X against the action of 
state D both as regards the removal of the soldiers and 
the internment of the West Wind is valid. 



114 NEUTRAL OBLIGATIONS 

(a) (2) Entrance of vessels. 

Public-owned merchant vessel. — The status of public- 
owned vessels engaged in trade or merchant service has 
been differently regarded in courts of different states and 
sometimes in the different courts of the same state. A 
claim was made against the steamship Pesaro in 1926 for 
failure to deliver certain cargo accepted for transporta- 
tion from Italy to New York. There was no denial that 
the ship was operated as a merchant vessel for the car- 
riage of merchandise. 

The Pesaro was libeled for failure to deliver this cargo 
and the district court dismissed the libel and the case 
was appealed to the Supreme Court of the United States. 

The Italian ambassador to the United States appeared and on 
behalf of the Italian Government specially set forth that the vessel 
at the time of her arrest was owned and possessed by that Gov- 
ernment, was operated by it in its service and interest; and 
therefore was immune from process of the courts of the United 
States. At the hearing it was stipulated that the vessel when 
arrested was owned, possessed, and controlled by the Italian 
Government, was not connected with its naval or military forces, 
was employed in the carriage of merchandise for hire between 
Italian ports and ports in other countries, including the port of 
New York, and was so employed in the service and interest cf 
the whole Italian nation as distinguished from any individual 
member thereof, private or official, and that the Italian Govern- 
ment never had consented that the vessel be seized or proceeded 
against by judicial process. On the facts so appearing the court 
sustained the plea of immunity and on that ground entered a 
decree dismissing tbe libel for want of jurisdiction. (Berizzi 
Brothers Co. v. S. S. Pesaro, 271 U. S. [1926] 562.) 

It is realized that the practice of operating publicly 
owned vessels in the merchant marine will give rise to 
new and delicate problems, and there may be disadvan- 
tages which may appear later to offset the advantages 
which have been expected. The government engaging in 
such undertakings at first appears to be in an advanta- 
geous position over private owners. 

The recent extension of governmental functions par- 
ticularly in relation to business have given rise to diffi- 



PUBLIC-OWNED VESSELS 115 

culties and have made early precedents which might be 
technically applicable open to question from a practical 
or business point of view. Some of these questions arose 
in the case of the Porto Alexandre decided in the British 
court in 1920. The Porto Alexandre had run upon the 
mud in the River Mersey. When arrested for payment 
of salvage the Portuguese Republic put forward the claim 
that the Porto Alexandre was a public vessel and an 
appeal was granted from the decision of Mr. Justice Hill 
which set aside the writ in rem and all subsequent pro- 
ceedings against the vessel. Lord Justice Scrutton said, 
supporting the earlier decision : 

I quite appreciate the difficulty and doubt which Hill, J., felt 
in this case, because no one can shut his eyes, now that the fashion 
of nationalization is in the air, to the fact that many states are 
trading or are about to trade with ships belonging to themselves ; 
and if these national ships wander about without liabilities, many 
trading affairs will become difficult. But it seems to me the 
remedy is not in these courts. The Parlement Beige excludes 
remedies in these courts. But there are practical commercia) 
remedies. If ships of the state find themselves left on the mud 
because no one will salve them when the state refuses any legal 
remedy for salvage, their owners will be apt to change their 
views. If the owners of cargoes on national ships find that the 
ship runs away and leaves them to bear all the expenses of 
salvage, as has been done in this case, there may be found a diffi- 
culty in getting cargoes for national ships. These are matters 
to be dealt with by negotiations between governments and not by 
governments exercising their power to interfere with the property 
of other states contrary to the principles of international courtesy 
which govern the relations between independent and sovereign 
states. While appreciating the difficulties which Hill, J., has felt, 
I think it is clear that we must in this court stand by the decision 
already given, and the appeal must be dismissed. (N. W. C, 
Int. Law Decisions, 1923, p. 59.) 

Public vessels and commerce. — In the case of Berizzi 
Bros. Co. "y. the Pesaro, already referred to, admitting 
that the precise question presented had never been before 
the court, the Supreme Court of the United States relied 
largely upon the opinion of Chief Justice Marshall in the 
case of the schooner Exchange v. McFaddon (7 Cranch 



116 NEUTRAL OBLIGATIONS 

[1812], p. 116). The Exchange was an armed vessel 
under the French flag to which McFaddon and another 
claimed ownership. 

Chief Justice Marshall said " this case involves the 
very delicate and important inquiry whether an Amer- 
ican citizen can assert in an American court a title to an 
armed national vessel found within the waters of the 
United States." 

In the case of the Pesaro it was stated that " the single 
question presented for decision by us is whether a ship 
owned and possessed by a foreign government, and oper- 
ated by it in the carriage of merchandise for hire, is 
immune from arrest under process based on a libel in rem 
by a private suitor in a Federal district court exercising 
admiralty jurisdiction. (271 U. S. [1926] 562.) 

In the case of the Pesaro it was said : 

It will be perceived that the opinion, although dealing compre- 
hensively with the general subject, contains no reference to mer- 
chant ships owned and operated by a government. But the 
omission is not of special significance, for in 1812, when the deci- 
sion was given, merchant ships were operated only by private 
owners, and there was little thought of governments engaging in 
such operations. That came much later. 

The decision in the Exchange therefore can not be taken as ex- 
cluding merchant ships held and used by a government from the 
principles there announced. On the contrary, if such ships come 
within those principles, they must be held to have the same im- 
munity as war ships, in the absence of a treaty or statute of the 
United States evincing a different purpose. No such treaty or 
statute has been brought to our attention. 

We think the principles are applicable alike to all ships held 
and used by a government for a public purpose, and that when, 
for the purpose of advancing the trade of its people or providing 
revenue for its treasury, a government acquires, mans, and oper- 
ates ships in the carrying trade, they are public ships in the same 
sense that warships are. We know of no international usage 
which regards the maintenance and advancement of the economic 
welfare of a people in time of peace as any less a public purpose 
than the maintenance and training of a naval force. 

The subsequent course of decision in other courts gives strong 
support to our conclusion. (Ibid.) 



STATUS OF VESSELS 117 

There were cited the cases of Briggs v. Light Boats 
(11 Allen, Mass. 157), vessels used as floating lights to 
aid navigation, the Parlement Beige (L. E. 5, P. D. 197), 
a vessel owned by Belgium and used for transporting 
mail, passengers, and freight for hire, and other cases. 

The lower court, by Judge Mack, had decided that the 
principle of immunity did not extend to vessels employed 
as merchant vessels. (277 Fed. Eep. 473.) 

The " Lake Monroe." — The Lake Monroe was a Govern- 
ment-owned vessel chartered to a shipping company and 
was carrying freight when it collided with an American 
fishing schooner. Whether the Lake Monroe should be 
exempt from arrest was among the questions raised be- 
fore the court. In the act of September 7, 1916, it had 
been provided, section 9 — 

Such vessels while employed solely as merchant vessels shall 
be subject to all laws, regulations, and liabilities governing mer- 
chant vessels, whether the United States be interested therein 
as owner, in whole or in part, or hold any mortgage, lien, or other 
interest therein. (39 U. S. Stat., Pt. 1., pp. 728, 730.) 

In regard to this it was the opinion of the Supreme 
Court that — 

The language of section 9, " such vessels while employed solely 
as merchant vessels," must be read in connection with the phrase 
" whether the United States be interested therein as owner, in 
whole or in part, or hold any mortgage, lien, or other interest 
therein." Her service at the time was purely commercial, and 
she was subject by the terms of the act to the ordinary liability 
of a merchant vessel, notwithstanding the indirect interest of 
the Government in the outcome of her voyage. 

We deem it clear, also, that among the liabilities designated by 
the section is the liability of a merchant vessel to be subjected 
to judicial process in admiralty for the consequences of a col- 
lision. (The Lake Monroe, 250 U. S. [1919], 246.) 

The " Comte de Smet de Naeyer." — The full-rigged 
ship Comte de Smet de Naeyer was owned by a Belgian 
company and was used as a school ship. When captured 
by German forces and brought before the prize court at 
Hamburg the court decided in favor of the owners for 



118 NEUTRAL OBLIGATIONS 

the release of the ship partly on the ground that its mis- 
sion was scientific. The German Government appealed. 
The higher court said : 

As has been explained in detail in the decision of the competent 
court of October 6, 1916, in the matter of the Primavera, the 
prize regulations in agreement with the London declaration are 
to be understood to mean by the expression " Merchant ships " 
any ocean-going ship that is not the property of the State. If 
this results distinctly from article 2 of the prize court regula- 
tions according to which only neutral public ships are excepted 
from the exercise of the prize law, it is also explicitly stated in 
the London conference that the expression " navire de commerce " 
includes all ships that are not public ships, and, accordingly, in 
article 6 of the prize regulations, it was regarded as necessary 
by way of exception to exempt certain ships from seizure that 
are not built to enter ocean service for gain, and, therefore, would 
not be regarded as merchant ships in the narrower sense. (1922 
N. W. C. Int. Law Documents, p. 151.) 

The decision of the lower court was set aside and the 
ship condemned. 

Decisions as to vessels. — A review of recent cases upon 
the status of merchant vessels belonging to or controlled 
by states shows a wide variety of opinion which is ad- 
mittedly very unsatisfactory. Manifestly a merchant 
vessel owned by a state might be at a marked advantage 
over a privately owned merchant vessel if it possessed 
the immunities to which a vessel of war is entitled. For- 
eign port authorities would be embarrassed in differen- 
tiating in the treatment of publicly owned and privately 
owned merchant vessels. 

There may be further difficulties arising in consequence 
of the nature and probable disposition of cargo. If both 
ship and cargo are devoted solely to public service, as in 
furnishing supplies to lighthouses, the immunity may be 
of a different degree from that of a ship and cargo en- 
gaged in a purely commercial venture. 

League of Nations committee, 1926. — The Committee of 
Experts for the Progressive Codification of International 
Law in 1926 appointed a subcommittee " to inquire into 



PUBLIC-OWNED VESSELS 119 

the legal status of Government ships employed in com- 
merce with a view to the solution by way of conventions 
of the problems raised thereby." (20 A. J. I. L., Spec. 
Sup., p. 260.) The subcommittee reported that regula- 
tions by international agreement were " desirable and 
realizable." The subject had been before the unofficial 
international maritime committee for several years and a 
draft convention was signed by several states April 10, 
1926, but this is subject to ratification. In the discussions 
before the international maritime committee it was evi- 
dent that the determination of the status of vessels pub- 
licly owned or publicly controlled in whole or in part 
was not merely of importance in time of war but also in 
time of peace. It was admitted as a matter of course that 
a state could determine the status of vessels which itself 
owned or controlled while such vessels were within its 
own jurisdiction, but the application of the same regula- 
tions to vessels publicly owned or controlled flying a 
foreign flag and entering its jurisdiction was doubted and 
the opinions were not uniform. 

In early opinion the status of publicly owned or con- 
trolled merchant vessels with little difference of view 
was assimilated to that of public vessels employed in 
state service. Gradually this easy solution of the prob- 
lem was questioned in diplomatic correspondence and in 
courts. The courts sometimes admitted that while fol- 
lowing precedents in reaching a decision that there was 
ground in new conditions for modifying the immunities 
if publicly owned vessels were to be used as merchant 
vessels. As the question has received further considera- 
tion, the need of new rules has become more evident. 

The subcommittee, consisting of Mr. de Magalhaes and 
Mr. Brierly, appointed by the League of Nations commit- 
tee of experts, gave the opinion that " the legal status of 
Government vessels employed in commercial work is a 
problem which it is most desirable, and quite possible, to 
solve by international agreement." The subcommittee 



120 NEUTRAL OBLIGATIONS 

would extend such agreements to the cargoes and pas- 
sengers on these vessels. 

The International Maritime Committee at Gothenburg 
in 1923 adopted the following resolution on the "immu- 
nity of state-owned ships " : 

Article 1. Vessels owned or operated by states, cargoes owned 
or operated by states, cargoes owned by them, and cargo and 
passengers carried on such vessels and the states owning or op- 
erating such vessels shall be subjected, in respect of claims relat- 
ing to the operation of such vessels or to such cargoes, to the 
rules of liability and to the same obligations as those applicable 
to private vessels, persons or cargoes. 

Art. 2. Except in the case of the ships and cargoes mentioned 
in paragraph 3, such rules and liabilities shall be enforceable by 
the tribunals having jurisdiction over, and by the procedure ap- 
plicable to, a privately owned vessel or cargo or the owner thereof. 

Art. 3. In the case of (a) ships of war and other vessels owned 
or operated by the state and employed only in governmental non- 
commercial work; (&) state-owned cargo carried only for pur- 
pose of governmental noncommercial work on vessels owned or 
operated by the state, such liabilities shall be enforceable only 
by action before the competent tribunals of the state owning or 
operating the vessel in respect of which the claim arises. 

Art. 4. The provisions of this convention will be applied in 
every contracting state in all cases where the claimant is a 
citizen of one of the contracting states, provided always that 
nothing in this convention shall prevent any of the contracting 
states from settling by its own laws the rights allowed to its own 
citizens before its own courts. (20 A. J. I. L. [1926] Spec. Sup., 
p. 276.) 

The subcommittee proposed certain changes in this 
resolution : 

(a) In article 1 suppress the words " in respect of claims relat- 
ing to the operation of such vessels or to such cargoes" and 
insert them in article 2 after the words " such rules and 
liabilities." 

(&) In article 3, paragraph (a), substitute the word "public" 
for the word "governmental," and in paragraph (&) of the same 
article for the word " governmental " read " public." 

(c) Article 4 should be drafted as follows: 

" The provisions of the conventions of 1910 and 1922 are 
amended in so far as they except all state ships." 



TREATMENT OF VESSELS 121 

Article 4 of the draft becomes article 3. 

(d) Add a new article, numbered 6, to read as follows: 

" In time of war, ships belonging to a belligerent state or man- 
aged by it, and cargoes belonging to such a state or borne on such 
ships, shall not be liable to attachment, seizure, or detention by 
a foreign court of justice. 

"Actions against such ships or cargoes may, during the war, be 
brought before the competent court of the state owning or man- 
aging such ships or cargoes." 

(e) Add further new article numbered 7, to read as follows: 

" The high contracting parties undertake that, should different 
interpretations of the provisions of this convention be adopted in 
various countries, they will request the Council of the League of 
Nations to obtain the opinion of the Permanent Court of Inter- 
national Justice at The Hague upon the said divergences of inter- 
pretation." (Ibid., p. 277.) 

Treatment of vessels. — In the United States the words 
" vessel of the United States " are used to mean any vessel 
publicly or privately owned under the flag of the United 
States. 

By the suits in admiralty, act of 1920 (41 U. S. Stat., 
p. 525), publicly owned vessels are not subject to seizure 
or arrest by judicial process though, if engaged as a 
merchant vessel, a libel in personam may be brought 
within the United States. If a suit is brought in a 
foreign state against a merchant vessel owned by the 
United States the consul in the district may claim that 
the vessel is immune from arrest and may execute an 
agreement, give bond or otherwise arrange for the release 
of the vessel pledging the United States to satisfy 
judgment. 

The convention and statute on the international regime 
of maritime ports, which came into force July 20, 1926, 
provides in article 13 that " This statute applies to all 
vessels, whether publicly or privately owned or con- 
trolled." It does not apply, however, to vessels exercising 
public authority as " warships or vessels performing 
police or administrative functions." 

Entrance of submarines. — The use of submarines while 
foreseen did not become a problem of serious importance 

9855—31 9 



122 NUETRAL OBLIGATIONS 

till the World War. During the World War the allied 
powers were particularly desirous of limiting the activi- 
ties of submarines within the narrowest possible range. 
The Governments of Italy, August 21, 1916; France, 
August 21 ; Great Britain, August 22 ; Russia, August 26 ; 
Japan, August 28; Portugal, August 30, transmitted an 
identic memorandum to neutral powers as follows : 

In the presence of the development of submarine navigation, 
under existing circumstances and by reason of what may unfor- 
tunately be expected from enemy submarines, the allied Govern- 
ments deem it necessary, in order to protect their belligerent 
rights and tbe freedom of commercial navigation, as well as to 
remove chances of conflict, to exhort the neutral Governments, 
if they have not already done so, to take efficacious measures tend- 
ing to prevent belligerent submarines, regardless of their use, to 
avail themselves of neutral waters, roadsteads, and harbors. 

In the case of submarines the application of the principles of 
international law offers features that are as peculiar as they are 
novel, by reason, on the one hand, of the facility possessed by 
such craft to navigate and sojourn in the seas while submerged 
and thus escape any supervision or surveillance, and, on the other 
hand, of the impossibility to identify them and determine their 
national character, whether neutral or belligerent, combatant or 
innocent, and to put out of consideration the power to do injury 
that is inherent in their very nature. 

It may be said, lastly, that any submarine war vessel far away 
from its base, having at its disposal a place where it can rest and 
replenish its supplies, is afforded, by mere rest obtained, so many 
additional facilities that the advantages it derives therefrom 
turn that place into a veritable basis of naval operations. 

In view of the present condition of things the allied Govern- 
ments hold that — 

Submarine vessels must be excluded from the benefit of the rules 
heretofore accepted in international law regarding the admis- 
sion and sojourn of war and merchant vessels in the neutral wa- 
ters, roadsteads, and harbors ; any submarine of the belligerents 
that once enters a neutral harbor must be held there. 

The allied Governments take this opportunity to warn the neu- 
tral powers of the great danger to neutral submarines attending 
the navigation of waters visited by the submarines of belligerents. 
(10 A. J. I. L. Spec. Sup. 1916, p. 342.) 

The United States in a memorandum after giving a 
resume of its understanding of that of the allies said ; 



ENTRANCE OF PEIZE 123 

In reply the Government of the United States must express its 
surprise that there appears to be an endeavor of the allied powers 
to determine the rule of action governing what they regard as a 
" novel situation " in respect to the use of submarines in time of 
war and to enforce acceptance of that rule, at least in part, by 
warning neutral powers of the great danger to their submarines 
in waters that may be visited by belligerent submarines. In the 
opinion of the Government of the United States the allied powers 
have not set forth any circumstances, nor is the Government of 
the United States at present aware of any circumstances, con- 
cerning the use of war or merchant submarines which would 
render the existing rules of international law inapplicable to 
them. In view of this fact and of the notice and warning of the 
allied powers announced in their memoranda under acknowledg- 
ment it is incumbent upon the Government of the United States 
to notify the Governments of France, Great Britain, Russia, and 
Japan that, so far as the treatment of either war or merchant 
submarines in American waters is concerned, the Government of 
the United States reserves its liberty of action in all respects 
and will treat such vessels as, in its opinion, becomes the action 
of a power which may be said to have taken the first steps to- 
ward establishing the principles of neutrality and which for over 
a century has maintained those principles in the tradit onal spirit 
and with the high sense of impartiality in which they were 
conceived. 

In order, however, that there should be no misunderstanding 
as to the attitude of the United States, the Government of the 
United States announces to the allied powers that it holds it to 
be the duty of belligerent powers to distinguish between subma- 
rines of neutral and belligerent nationality, and that responsibility 
for any conflict that may arise between belligerent warships and 
neutral submarines on account of the neglect of a belligerent to 
so distinguish between these classes of submarines must rest 
entirely upon the negligent powers. (Ibid., p. 343.) 

SOLUTION 

(a) (2) The protest of state Y against the internment 
of the submarine, the Porpoise, is not valid. 

(a) (3) Entrance of prize. 

The German " TJG 8? 1915.— -On November 5, 1915, the 
TJG #, a German submarine, showed signals of distress 
off the Dutch coast near Terschelling. A Dutch vessel 



124 NTJETRAL OBLIGATIONS 

went to its assistance and the submarine was escorted 
to Terschelling. Two days later the submarine was noti- 
fied that it would be interned as it had entered Dutch 
waters contrary to the declaration of neutrality and the 
submarine was interned at Alkmaar. 

On November 11, 1915, the German minister at The 
Hague protested against the internment maintaining that 
the submarine had entered Dutch waters because of a 
defective electric compass, that the action of the Nether- 
land Government was not in accord with conventional 
and international law, that such restrictions as were con- 
tained in the Netherlands declaration of neutrality could 
not be established by unilateral declaration, and that the 
measures of restraint were excessive. 

The Netherland Government in a reply of November 
22, 1915, said: 

L'internement du C 8 est base sur les prescriptions des articles 
4, 17 et 3, 2e al. de la declaration de neutrality neerlandaise, qui 
fut communiquee au Gouvernement Imperial par l'intermediaire 
de la Legation des Pays-Bas a Berlin. L'article 4 statue que la 
presence d'aucun navire de guerre belligerant ne sera permise 
dans la juridiction des Pays-Bas ; Particle 17 porte que cette juri- 
diction comprend la mer territorial qui est d'une largeur de trois 
milles marins ; Particle 3, al. 2, prescrit l'internement du navire de 
guerre belligerant qui serait entre dans ladite juridiction au 
mepris de l'art. 4. L'article 2 cite dans 1'office de Votre Excellence 
ne deroge pas a Finterdiction de l'art. 4, il en forme au contraire 
une amplification en ce qu'il exclut expressement le passage par 
les eaux interieures. 

L'interdiction contenue dans l'article 4 n'est d'aucune fagon 
contraire au Droit des Gens. L'article 10 de la XHIe Convention 
de la Haye statue que la neutralite d'un etat n'est pas compromise 
par le simple passage de navires de guerre belligerants dans ses 
eaux territoriales. Lors de Felaboration de cet article il fut con- 
state que la question de savoir si un etat neutre a le droit d'inter- 
dire ce passage etait laissee sous l'empire du Droit des Gens 
general. Ce droit autorise un etat neutre a prendre dans ses eaux 
territoriales les mesures necessaires pour la sauvegarde de ses 
droits souverains. Aucun precepte ne defend a un Stat d'inter- 
dire a cet effet aux navires de guerre belligerants de se rendre 
dans ces eaux. Le droit d'un etat neutre d'en interdire le pas- 



ENTRANCE OF VESSELS 125 

Huge a, ces navires est reconnu par differents auteurs contem- 
porains du Droit des Gens, entre autres tout dernierenient par le 
Docteur Hans Wehberg dans son ouvrage intitule, " Das See- 
Kriegsreclit," ou il est dit : " Den Neutralen muss vielmehr das 
Recht den Kriegsschiffen die Durchfahrt durch die Kuestenge- 
waesser zu verbieten in volleni Umfange zugesproclien wer- 
den." * * * 

L'article 5 de la Declaration de neutrality enonce les cas on 
nonobstant la regie de l'article 4 la presence d'un navire de guerre 
d'un belligerant dans la juridiction des Pays-Bas est permise. 
Aucun de ces cas ne se presentait nour le C 8, notarnment le 
navire n'avait subi aucune avarie qui necessitait son entree dans 
les eaux territoriales neerlandaises. 

Un defaut du compas electrique ne saurait justifier l'entree du 
sous-marin dans les eaux territoriales neerlandaises, vu que le 
commandant, eu egard aux difficultes de navigation dans ces 
parages, aurait en tout cas du prendre les precautions de rigueur 
pour eviter de penetrer dans les dites eaux, c'est-a-dire en navi- 
guant a la sonde. Cette precaution etait d'autant plus necessaire, 
que le commandant dapres sa propre declaration, avait deja 
pendant le voyage doute du fonctionnement correct du compas. 

Une copie de la declaration en langue neerlandaise signee par 
le commandant et portant en marge une addition en langue alle- 
mancle, egalement signee par lui, est jointe a la presente. 

De ce qui precede il resulte d'une part que la declaration de 
neutralite neerlandaise imposait au Gouvernement de la Reine 
le devoir absolu de proceder a l'internement du sous-marin C S, 
d'autre part que les regies qu'elle contient a ce sujet ne sont 
nullement contraires au Droit des Gens. (Ministre des Affaires 
Etrangeres, Recueil de diverses communications, 1916, p. 151.) 

This reply was not satisfactory to the German Govern- 
ment, as was stated in a note of November 25 setting 
forth the German position and requesting the immediate 
release of the submarine. 

The Netherlands Government later, December 7, 1915, 
pointed out to Germany that — 

Dans sou expose le Gouvernement Imperial passe sous silence 
quelques points de grande importance, savoir : 

1. que le commandant du sous-marin s'etait apergu deja en 
pleine mer que son compas electrique ne f onctionnait pas bien ; 

2. que neanmoins il n'avait pas pris la precaution de rigueur 
dans ces parages de naviguer a la sonde, ce qui l'aurait aide a 
s'orienter et a rester en dehors des eaux territoriales, et, 



126 KUETRAL OBLIGATIONS 

3. qu'il n'etait pas entre clans les eaux territoriales pour y 
reparer une avarie. (Ibid., p. 155.) 

The Netherland Government also stated that it could 
not make distinctions between intentional and noninten- 
tional entrance. The defect in an electric compass was 
not considered as an evidence of distress, but as an addi- 
tional reason for exercising care in navigation in order 
that regulations of neutrality might not be violated. 

Other submarines entering Dutch territorial waters 
were interned. 

Radio upon vessels. — While prizes are generally ad- 
mitted to neutral ports in case of distress, distress must 
manifestly be of a nature reasonably to imperil the ves- 
sel. Some neutral states do allow prizes to be seques- 
trated pending adjudication in a belligerent court, but 
in Situation III entrance to the territorial' sea is for- 
bidden to all belligerent vessels except strictly private 
merchant vessels upon the surface. The East Wind in 
charge of a prize crew would not be a strictly private 
merchant vessel nor would the fact that its radio was 
disabled constitute such a condition as would make the 
vessel so unseaworthy as to constitute distress, for ves- 
sels for many generations operated without radio. 
State X could not maintain that this was entrance in 
distress, and the authorities of D were acting within 
their rights in interning the prize crew and permitting 
repairs to the East Wind. 

solution 

(a) (3) The protest of state X against the action of 
state D in interning the prize crew on the East Wind 
and allowing repairs and release of the vessel is not valid. 

(b) (1) Supplying vessels of war at sea. 

Supplies to vessels of war. — During the World War, 
1914—1918, the shipping of supplies from ports of the 
United States to vessels of war of the belligerents was 
often a subject of diplomatic correspondence. 



SUPPLIES TO VESSELS OF WAR 127 

As early as August 11, 1914, the matter of granting 
clearance from New York to the German steamship 
Barbarossa was raised. This vessel had taken on a large 
amount of fuel and was apparently planning to transfer 
a part of its cargo at sea. In the opinion of the Depart- 
ment of State these facts would not be sufficient for 
refusing clearance to the private merchant vessel. 

In the case of the Mazatlan there was doubt as to the 
clearance from San Francisco. The Acting Secretary of 
State said on August 22, 1914, in a communication to the 
Secretary of Commerce : 

Sir : I have the honor to acknowledge receipt of your letter of 
the 20th instant in which you inclose a telegram from the collector 
of customs at San Francisco regarding the clearance of the Mexi- 
can steamer Mazatlan flying the German flag and carrying a cargo 
of coal apparently destined to German cruisers in Pacific waters. 
I also acknowledge the receipt over the telephone of a further 
telegram from the collector stating that the acting German consul 
has offered to give a written guarantee that while this coal was 
an excess supply purchased for the Leipzig, the coal will be de- 
livered in Guaymas, Mexico. The shipowner also volunteers to 
give bond guaranteeing the delivery of flip coal at this Mexican 
port. 

All the facts of this case before this department have been laid 
before the joint State and Navy neutrality board for its opinion. 
On the basis of that opinion the department recommends under 
the circumstances of this special case that the collector be in- 
structed to give clearance to the Mazatlan with coal on board on 
condition that in addition to the written guarantee which the 
German consul offers to give as described in the telegram of the 
collector he give further written assurances (1) that the coal 
shipped by the Mazatlan will not be delivered to any German 
war vessel that has already received coal in the United States 
port since the outbreak of hostilities within three months after 
such receipt; and (2) that if the coal be delivered to any other 
German war vessel, the fact of such delivery will prevent the 
last-named war vessel from receiving coal in any United States 
port within a period of three months after said delivery. 

Failing the receipt of these written assurances from the Ger- 
man consul it is recommended that clearance to the Steamship 
Mazatlan be denied unless the coal in question is first discharged. 
(1914, For. Rel. Sup; p. 617.) 



128 NUETRAL OBLIGATIONS 

S.uspected cargoes. — These and other somewhat similar 
shipments were brought to the attention of the Depart- 
ment of State, and on September 19, 1914, a memoran- 
dum was transmitted to the representatives of the bel- 
ligerent Governments setting forth the general rules 
which the Government would follow in dealing " with 
cases of merchant vessels suspected of carrying supplies 
to belligerent warships from American ports." 

[Memorandum of the Department of State with reference to 
merchant vessels suspected of carrying supplies to oelligerent 
vessels, Septemder 19, 1914] 

1. A base of operations for belligerent warships is presumed 
when fuel or other supplies are furnished at an American port to 
such warships more than once within three months since the war 
began, or during the period of the war, either directly or by means 
of naval tenders of the belligerent or by means of merchant ves- 
sels of belligerent or neutral nationality acting as tenders. 

2. A common rumor or suspicion that a merchant vessel laden 
with fuel or other naval supplies intends to deliver its cargo to a 
belligerent warship on the high seas, when unsupported by direct 
or circumstantial evidence, imposes no duty on a neutral govern- 
ment to detain such ships even for the purpose of investigating 
the rumor or suspicion, unless it is known that the vessel has been 
previously engaged in furnishing supplies to a belligerent warship. 

3. Circumstantial evidence, supporting a rumor or suspicion 
that a merchant vessel intends to furnish a belligerent warship 
with fuel or other supplies on the high seas, is sufficient to war- 
rant detention of the vessel until its intention can be investigated 
in the following cases: 

(a) When a belligerent warship is known to be off the port at 
which the merchant vessel is taking on cargo suited for naval 
supplies or when there is a strong presumption that the warship 
is off the port. 

(&) When a merchant vessel is of the nationality of the bel- 
ligerent whose warship is known to be off the coast. 

(c) When a merchant vessel, which has, on a previous voyage 
between ports of the United States and ports of other neutral 
states, failed to have on board at the port of arrival a cargo con- 
sisting of naval supplies shipped at the port of departure, seeks 
to take on board a similar cargo. 

(d) When coal or other supplies are purchased by an agent of 
a belligerent government and shipped on board a merchant vessel 



SUSPECTED CARGOES 129 

which does not clear for a port of the belligerent but for a neigh- 
boring neutral port. 

(e) When an agent of a belligerent is taken on board a mer- 
chant vessel having a cargo of fuel or other supplies and clearing 
for a neighboring neutral port. 

4. The fact that a merchant vessel, which is laden with fuel or 
other naval supplies, seeks clearance under strong suspicion that 
it is the intention to furnish such fuel or supplies to a belligerent 
warship is not sufficient ground to warrant its detention, if the 
case is isolated and neither the vessel nor the warship for which 
the supplies are presumably intended has previously taken on 
board similar supplies since the war began or within three months 
during the period of the war. 

5. The essential idea of neutral territory becoming the base for 
naval operations by a belligerent is repeated departure from such 
territory by a naval tender of the belligerent or by a merchant 
vessel in belligerent service which is laden with fuel or other 
naval supplies. 

6. A merchant vessel, laden with naval supplies, clearing from 
a port of the United States for the port of another neutral nation, 
which arrives at its destination and there discharges its cargo, 
should not be detained if, on a second voyage, it takes on -board 
another cargo of similar nature. 

In such a case the port of the other neutral nation may be a 
base for the naval operations of a belligerent. If so, and even if 
the fact is notorious, this Government is under no obligation to 
prevent the shipment of naval supplies to that port. Commerce 
in munitions of war between neutral nations cannot as a rule be 
a basis for a claim of unneutral conduct, even though there is a 
strong presumption or actual knowledge that the neutral state, in 
whose port the supplies are discharged, is permitting its territory 
to be used as a base of supply for belligerent warships. The duty 
of preventing an unneutral act rests entirely upon the neutral 
state whose territory is being used as such a base. 

In fact this principle goes further in that, if the supplies were 
shipped directly to an established naval base in the territory or 
under the control of a belligerent, this Government would not be 
obligated by its neutral duty to limit such shipments or detain 
or otherwise interfere with the merchant vessels engaged in that 
trade. A* neutral can only be charged with unneutral conduct 
when the supplies, furnished to a belligerent warship, are fur- 
nished directly to it in a port of the neutral or through naval 
tenders or merchant vessels acting as tenders departing from such 
port. 



130 NUETRALi OBLIGATIONS 

7. The foregoing propositions do not apply to furnishing muni- 
tions of war included in absolute contraband, since in no event 
can a belligerent warship take on board such munitions in neutral 
waters, nor should it be permitted to do so indirectly by means 
of naval tenders or merchant vessels acting as such tenders. 
(Department of State, September 19, 1914.) 

The " Locksun" 1914. — The German cruiser Geier en- 
tered the port of Honolulu for repairs in October, 1914. 
About the same time the steamer Locksun arrived. The 
Acting Secretary of State sent the following communi- 
cation to the German ambassador on November 7, 1914, 
after the Geier had had a reasonable opportunity to 
make repairs : 

My Dear Mr. Ambassador: Referring to my previous communi- 
cation to you of October 30 regarding the internment of the Ger- 
man cruiser Geier, the department is now in possession of infor- 
mation that the German steamship Locksun, belonging to the 
Norddeutscher Lloyd Co., cleared August 16, 1914, from Manila 
with 3,215 tons of coal for Menado, in the Celebes ; that she coaled 
the German warship Geier in the course of her voyage toward 
Honolulu, where she arrived soon after the Geier; that the Lock- 
sun received coal by transfer from another vessel somewhere 
between Manila and Honolulu ; and that the captain stated that 
he had on board 245 or 250 tons of coal when he entered Honolulu, 
whereas investigation showed that he had on board approximately 
1,600 tons. 

From these facts the department is of the opinion that the 
operations of the Locksun constitute her a tender to the Geier, 
and that she may be reasonably so considered at the present time. 
This Government is therefore under the necessity of according 
the Locksun the same treatment as the Geier, and has taken steps 
to have the vessel interned at Honolulu if she does not leave 
immediately. (1914, For. Rel. U. S., Sup., p. 587.) 

These vessels were interned November 12, 1914. 

On November 11, 1914, the German ambassador had 
requested information as to under what rule the Locksun 
had been detained, saying : 

The Locksun can not be considered as a man-of-war, not even 
as an auxiliary ship, but is a simple merchant ship. As to the 
alleged coaling of H. M. S. Geier from the Locksun, the neutrality 
regulations of the United States only provide that a vessel can 



SUSPECTED GAEGOES 131 

be prevented from taking coal to a warship for a period of three 
months after having left an American port. As the Locfcsun 
left the last American port (Manila) on August 16 she ought to 
be free on November 16. (1914, For. Eel. U. S., Sup., p. 588.) 

To this the counselor for the Department of State 
replied on November 16, 1914 : 

My Deae Mr, Ambassador : In reply to your note of the 11th 
instant, inquiring on which rule or regulation the internment of 
the German ship Locksun is based, I would advise you that the 
Locksun has been interned on the principle that she has been 
acting as a tender to the German warship Geier, as the facts set 
forth in my note of the 7th instant substantiate. If, under the 
circumstances, the Locksun has been in fact a tender to the Geier, 
the question involved does not relate to the amount of coal which 
either the Locksun or the Geier has taken on within three months, 
but rather relates to the association and cooperation of the two 
vessels in belligerent operations. The Locksun, having been shown 
to have taken the part of a supply ship for the Geier, is, in the 
opinion of this Government, stamped with the belligerent character 
of that vessel, and has really become a part of her equipment. 
In this situation it is difficult to understand on what basis it 
would have been possible to distinguish between the two vessels, 
so as to intern the one and not the other. This Government, there- 
fore, has taken what appears to it to be the only reasonable course, 
under the circumstances, and directed that both vessels be 
interned. (Ibid., p. 589.) 

The " Berwind" 191 4- — Neutral merchant vessels did 
apparently carry supplies to vessels of war. While there 
was not entire agreement on the facts, the case of the 
Berwind is illustrative. In a note from the British am- 
bassador to the Secretary of State on November 20, 1914, 
the circumstances were stated to be as follows : 

Sir : Under instructions from my Government, I have the honor 
to bring the following matter to your notice. 

The American steamer Berwind, with a full cargo of coal on 
board and- under charter to the Hamburg-American Line, cleared 
for Buenos Aires from New York on the 5th of August last. 

It is now established beyond all possible doubt that the Ber- 
wind in fact never did proceed to Buenos Aires ; that on Septem- 
ber 18 last she arrived in ballast at Rio de Janeiro after having 
coaled the German warships Cap Trafalgar and Dresden; and 



132 NUETRAL OBLIGATION'S 

that she is now again in the port of New York, having arrived 
there from Rio de Janeiro on the 15th instant. 

In the rules issued by your department on September 19 for 
the guidance of United States officers in dealing with merchant 
vessels suspected of carrying supplies to belligerent vessels, it is 
stated as follows : 

" 3. Circumstantial evidence, supporting a rumor or suspicion 
that a merchant vessel intends to furnish a belligerent warship 
with fuel or other supplies on the high seas, is sufficient to war- 
rant detention of the vessel until its intention can be investigated 
in the following cases: 

"(c) When a merchant vessel, which has on a previous voy- 
age between ports of the United States and ports of other neu- 
tral states failed to have on board at the port of arrival a cargo 
consisting of naval supplies shipped at the port of departure, 
seeks to take on board a similar cargo." 

Under instructions from Sir E. Grey I have the honor to re- 
quest that in the event of the BerwincD preparing to put to sea 
again with supplies or fuel on board, she may be detained in 
port in accordance with the rules quoted above. (1914 For. Rel., 
Sup., p. 633.) 

This matter was by the Secretary of State brought 
to the attention of the Attorney General with a view 
to preventing " the Berwind or its owner from again 
using the ports of the United States as a point of de- 
parture of cargoes of coal or supplies for war vessels of 
the belligerents at sea in such manner as to constitute 
United States ports as bases of supplies for such armed 
vessels." 

Supplies to vessels at sea. — [Referring to Article 7 of 
Hague Convention No. XIII which states that — 

A neutral power is not bound to prevent the export or transit, 
for the use of either belligerent, of arms, munitions, or, in general, 
of anything which could be of use to an army or fleet. (1908, 
N. W. C. Int. Law Situations, pp. 188, 190), 

and to the embodiment of the principle in American state- 
ments, the German Government indicated that the con- 
duct of American port officials was more favorable to one 
belligerent than to the other. In a German memorandum 
of December 15, 1914, received by the Department of 



SUPPLIES TO VESSELS OF WAR 133 

State, it was said in referring to The Hague convention 
and the neutrality statement : 

In spite thereof, various American port authorities have denied 
clearance from American ports to vessels of the merchant marine 
seeking to convey needed supplies or fuel to German warships 
either on the high seas or in other neutral ports. 

According to the principles of international law above cited, a 
neutral state need not prevent furnishing supplies of this charac- 
ter ; nor may it, after allowing the adversaries to be furnished 
with contraband, either detain or disable a merchant ship carry- 
ing such a cargo. Only if contraband trade should turn the ports 
into bases of German military operations, would the unilateral 
stoppage of the trade of those vessels become a duty. Such, 
perhaps, would become the case if German coal depots were estab- 
lished in the ports, or if the vessels called at a port in regular 
voyages on the way to German naval forces. But it stands to 
reason that an occasional sailing of one merchant vessel with 
coal or supplies for German warships does not turn a neutral port 
into a' German base in violation of neutrality. 

Our enemies draw from the United States contraband of war, 
especially arms, worth several billions of marks. This in itself 
they are authorized to do. But if the United States prevents our 
warships from occasionally drawing supplies from its ports, a 
great injustice grows out of the authorization, for it would amount 
to an unequal treatment of the belligerents and constitute a 
breach of the generally accepted rules of neutrality to Germany's 
detriment. (1914, For. Bel., Sup., p. 647.) 

This communication received consideration, and on 
December 24, 1915, a reply was made in which attention 
was called to articles 18 to 20 of Hague Convention XIII. 

ARTICLE 18 

Belligerent warships may not make use of neutral ports, road- 
steads, or territorial waters for replenishing or increasing their 
supplies of war material or their armament, or for completing 
their crews. 

ARTICLE 19 

Belligerent warships may only revictual in neutral ports or 
roadsteads to bring up their supplies to the peace standard. 

Similarly these vessels may only ship sufficient fuel to enable 
them to reach the nearest port in their own country. They may, 
on the other hand, fill up their bunkers built to carry fuel, when in 



134 NUETKAL OBLIGATIONS 

neutral countries which have adopted this method of determining 
the amount of fuel to be supplied. 

If, in accordance with the law of the neutral power, the ships 
are not supplied with coal within 24 hours of their arrival, the 
permissible duration of their stay is extended by 24 hours. 

ARTICLE 20 

Belligerent warships which have shipped fuel in a port belong- 
ing to a neutral power may not within the succeeding three months 
replenish their supply in a port of the same power. (1908 N. 
W. C, Int. Law Situations, p. 218.) 

The reply stated : 

Complaint, however, appears to be made by the Imperial Ger- 
man Government of the refusal of clearance by American author- 
ities to merchant vessels intending to furnish fuel and supplies 
to German warships on the high seas or in neutral ports. 

In reply I desire to call to your attention that the Government 
is not aware that any merchant vessel has been refused a clear- 
ance on these grounds during the present war, although certain 
temporary detentions have been found to be necessary for the 
purpose of investigating the bona fides of the alleged destinations 
of particular vessels and the intentions of their owners or mas- 
ters. This has been done in an effort to carry out the principles 
of international law and the declarations of treaties with respect 
to coal supplies for belligerent warships and the use of neutral 
ports as bases of naval operations. Although as a rule there is 
on the part of the nationals of neutral countries entire freedom of 
trade in arms, ammunition, and other articles of contraband, 
nevertheless the Imperial German Government will recall that 
international law and the treaties declaratory of its principles 
make a clear distinction between ordinary commerce in contra- 
band of war and the occasional furnishing of warships at sea 
or in neutral ports. In this relation I venture to advert to articles 
18 to 20, inclusive, of Hague Convention XIII, 1907. From 
these articles it will be observed that a warship which has re- 
ceived fuel in a port belonging to a neutral power may not within 
the succeeding three months replenish her supply in a port of 
the same power. It is, I am sure, only necessary to call your 
attention to these articles to make it perfectly clear that if a 
number of merchant vessels may at short intervals leave neutral 
ports with cargoes of coal for transshipment to belligerent war- 
ships at sea, regardless of when the warships last received fuel 
in the ports of the same neutral power, the conventional prohibi- 
tion would be nullified, and the three months' rule rendered use- 
less. By such a practice a warship might remain on its station 



BASES 135 

engaged in belligerent operations without the inconvenience of 
repairing to port for fuel supplies. (1914, For. ReL, Sup., p. 648.) 

German doctrine as to base. — The German Govern- 
ment in 1914 regarded the American practice as to clear- 
ance of vessels loaded with fuel and other supplies nec- 
essary for vessels of war as " untenable in international 
law." In a memorandum of December 15, 1914, it was 
said (see Ante, p. 133) : 

According to the principles of international law above cited, a 
neutral state need not prevent furnishing supplies of this char- 
acter ; nor may it, after allowing the adversaries to be furnished 
with contraband, either detain or disable a merchant ship car- 
rying such a cargo. Only if contraband trade should turn the 
ports into bases of German military operations, would the uni- 
lateral stoppage of the trade of those vessels become a duty. 
Such, perhaps, would become the case if German coal depots were 
established in the ports, or if the vessels called at a port in regu- 
lar voyages on the way to German naval forces. But it stands 
to reason that an occasional sailing of one merchant vessel with 
coal or supplies for German warships does not turn a neutral 
port into a German base in violation of neutrality. (1914 For. 
Rel., Sup., p. 647.) 

Replying to the German objections to American delay 
in granting clearance, the Secretary of State said on 
December 24, 1914: 

Furthermore, article 5 of the same convention (Hague XIII) 
forbids belligerents to use neutral ports and waters as a base 
of naval operations against their adversaries. As stated in the 
department's statement on " Merchant vessels suspected of car- 
rying supplies to belligerent vessels," dated September 19 last (a 
copy of which is inclosed), the essential idea of neutral territory 
becoming the base for naval operations by a belligerent is, in the 
opinion of this Government, repeated departure from such terri- 
tory of merchant vessels laden with fuel or other supplies for 
belligerent warships at sea. (Ibid., p. 648.) 

Resolution of March ^, 1915, on bases. — In the early 
period of the World War the use of neutral waters and 
ports as bases from which to carry on hostile operations 
had been discussed. To meet the problems arising, the 
Congress of the United States acted as follows : 



136 NUETKAL OBLIGATIONS 

Resolved by the Senate and House of Representatives of the 
United States of America in Congress assembled, That from and 
after the passage of this resolution, and during the existence of 
a war to which the United States is not a party, and in order 
to prevent the neutrality of the United States from being violated 
by the use of its territory, its ports, or its territorial waters as 
the base of operations for the armed forces of a belligerent, con- 
trary to the obligations imposed by the law of nations, the treaties 
to which the United States is a party, or contrary to the statutes 
of the United States, the President be, and he is hereby, authorized 
and empowered to direct the collectors of customs under the juris- 
diction of the United States to withhold clearance from any vessel, 
American or foreign, which he has reasonable cause to believe to 
be about to carry fuel, arms, ammunition, men, or supplies to 
any warship, or tender, or supply ship of a belligerent nation, in 
violation of the obligations of the United States as a neutral 
nation. 

In case any such vessel shall depart or attempt to depart from 
the jurisdiction of the United States without clearance for any 
of the purposes above set forth, the owner or master or person 
or persons having charge or command of such vessel shall severally 
be liable to a fine of not less than $2,000 nor more than $10,000, 
or to imprisonment not to exceed two years, or both, and, in 
addition, such vessel shall be forfeited to the United States. 

That the President of the United States be, and he is hereby, 
authorized and empowered to employ such part of the land or 
naval forces of the United States as shall be necessary to carry 
out the purposes of this resolution. 

That the provisions of this resolution shall be deemed to extend 
to all land and water, continental or insular, within the juris- 
diction of the United States. 

Approved, March 4, 1915. (38 U. S. Stat., Pt. I, p. 1226.) 

The " Fam" 1915. — The question of the status of a 
vessel captured by a belligerent while it was lawfully fly- 
ing the flag of its enemy has arisen in varying forms. 
When such a vessel enters a neutral port it is evident 
that the de facto authority in control must be recognized, 
otherwise the legality of the capture or other aspects of 
the captor's conduct would be brought into question. It 
has sometimes been maintained that prize decision is nec- 
essary before the neutral may lawfully recognize the 
captor's authority. Some of these questions were raised 



THE ' i FARN ' ' 137 

in 1915 in regard to the Farm and the Secretary of State 
in a letter to the British Ambassador said : 

Washington, March 13, 1915. 

Excellency : I have the honor to acknowledge the receipt of 
your excellency's note of the 26th ultimo in relation to the steam- 
ship Fwn, or KD-3, which has been interned in the port of San 
Juan, P. R., as a tender to a belligerent fleet. The department is 
advised that the Fam left Cardiff about September 5, 1914, for 
Montevideo, with a clause in her charter to deliver coal to war- 
ships if they so desired. Though, as you state, the vessel was not 
employed as a collier, or otherwise, in the Admiralty service, this 
fact would not in the opinion of the department affect her status 
at the time of internment if she indeed acted as a collier or 
auxiliary to a belligerent fleet. It is understood that the Farn 
was a British merchant vessel ; that she had on board a cargo of 
Cardiff coal amounting to some 3,000 tons ; that she was captured 
by the German cruiser Karlsruhe on October 5 ; that the cruiser 
placed a prize crew and officers on board ; and that notwithstand- 
ing the known practice of the Karlsruhe to sink her enemy prizes, 
the vessel had been at sea continuously since the date of capture 
until she put into the port of San Juan on January 12 last, for 
provisions and water. The department believes that the only 
reasonable conclusion in the circumstances is that between Octo- 
ber 5 and January 12 the Fam was used as a tender to German 
warships. It appears obvious that a belligerent may use a prize 
in its service and that the prize thereby becomes stamped with a 
character dependent upon the nature of the service. It is upon 
this view of the case that the United States Government concluded 
to treat the vessel as a tender, which character accords with hec 
presumed service to the German fleet. 

Your excellency states that it would be necessary before the 
vessel could be treated as a German fleet auxiliary that she 
should have been condemned by a competent prize court. With 
this conclusion the Government of the United States is under 
the necessity of disagreeing. In the opinion of this Government 
an enemy vessel which has been captured by a belligerent cruiser 
becomes, as between the two governments, the property of the 
captor without the intervention of a prize court. If no prize 
court is available, this Government does not understand that it 
is the duty of the captor to release his prize, or to refuse to 
impress her into its service. On the contrary, the captor would 
be remiss in his duty to his government and to the efficiency of 
its belligerent operations if he released an enemy vessel because 
he could not take her in for adjudication. 

9855—31 10 



138 NUETRAL OBLIGATIONS 

As to article 21 of The Hague Convention No. XIII of 1907, 
cited by your excellency as prescribing the treatment to be ac- 
corded to the Farn, it is only necessary to state that as it appears 
that His Majesty's Government has not ratified this convention, 
it should not be regarded as of binding effect between Great 
Britain and the United States. 

In this relation I venture to call to your attention that the 
British consul at San Juan protested on January 12 against the 
clearance of the Farn, and that your excellency in your note of 
January 13 requested that she be detained in the interest of 
neutrality. It was not until January 17 that your excellency 
informed the department that His Majesty's Government pre- 
sumed that the United States would act under article 21 of 
Hague Convention No. XIII of 1907 in regard to the release of 
the vessel. Sufficient time had thus elapsed to allow for com- 
munication with British warships and their appearance off the 
port of San Juan. The result of releasing a German prize loaded 
with coal at this juncture needs no comment. 

In the circumstances the Government of the United States is 
under the necessity of adhering to its decision to intern until the 
end of the war the steamship Farn as a fleet auxiliary. 

I have, etc., 

Robert Lansing 
(For the Secretary of State). 

(1915 For. Bel., Sup., p. S23.) 

Supplies to vessels of tew a\t sea. — From time to time 
during the World War vessels of war were off the coast 
of the United States and in need of fuel or other sup- 
plies. Questions arose as to whether it would be per- 
missible for neutral or belligerent private vessels to 
transport such supplies to the vessels of war under the 
rule forbidding belligerents to use neutral ports and 
waters as a base of naval operations. The Acting Secre- 
tary of State, in a letter to the German ambassador, 
April 10, 1915, said : 

The reasons for this rule are evident when its application is 
considered. In the first place, as only sufficient coal and supplies 
may be furnished a warship to enable it to reach its nearest home 
port, neutrals must, in order to determine the amount, be specifi- 
cally advised of the size of the vessel, the number of the crew, 
the amount of fuel and supplies already on board, and the place 



SUPPLIES TO VESSELS OF WAR 139 

of transshipment. Without knowledge of these facts it would 
be impossible to limit the cargo of a vessel so that the warship 
could not take on board more coal or supplies than the rule of 
international law permits. In the second place, after the de- 
parture of a supply boat from the jurisdiction of the United 
States, this Government would have no control over the vessel 
to prevent delivery to a different warship from the one supposed 
to be entitled to replenishment, even though the supplies fur- 
nished far exceeded the amount permitted by international law. 
In the third place, as a belligerent warship may not, in any 
event, supply itself in the ports of a neutral power more than once 
in three months, a neutral government, before allowing coal and 
supplies to be taken to a belligerent warship from its ports, 
should be satisfied that none had been obtained by the same ves- 
sel within the preceding three months. This information can be 
had only from the warship itself, unless it has during the period 
entered a neutral port, or been in direct communication there- 
with. In any event, the amount of the stores to be supplied, and 
the time when they may properly be furnished are questions of 
fact, and not matters of presumption. 

Furthermore, the allowance of coal and supplies by a neutral 
to a belligerent warship is based on the presumption that the 
latter intends to return to its home port. There can, however, 
be no such presumption in the present case. In fact, the pre- 
sumption is that no German warship would attempt to return 
home when there is a virtual investment of German ports by 
hostile naval forces. On the contrary, it may be assumed with 
reasonable certainty that a German warship which remains on 
the high seas, proposes to take supplies in order to continue hos- 
tile operations against vessels of belligerent nationality and to 
intercept and search neutral vessels. If, therefore, such a war- 
ship is supplied with an amount of coal and supplies in excess 
of the amount permitted by law, the neutral territory from which 
such stores are derived would clearly constitute a depot for the 
projection of the naval operations of a belligerent in contraven- 
tion of the rules of international law and article 5 of Hague Con- 
vention No. XIII of 1907. (1915 For. Rel., Sup., p. 862.) 

SOLUTION 

(b) (1) The protest of state Y against the furnishing 
of fuel and provisions within a period of three months 
in state E to the Athens is valid. 



140 NUETKAL OBLIGATIONS 

(b) {2) Control of radio. 

Hague Convention F, 1907. — Hague Convention V, 
1907, is concerned with the rights and duties of neutral 
States in case of war on land. The report of the second 
commission of the second Hague peace conference, the 
committee charged with the investigation of this subject 
in articles 3, 8, and 9 touches upon the use of wireless 
telegraph. 

ARTICLE 3 

Belligerents are likewise forbidden : 

(a) To erect on the territory of a neutral state a wireless teleg- 
raphy station or any other apparatus for the purpose of commu- 
nicating with the belligerent forces on land or sea ; 

(6) To use any installation of this kind established by them 
before the war on the territory of a neutral state, for purely 
military purposes, and which has not been opened for the service 
of public messages. 

The provisions of this article follow directly from the principle 
affirmed in article 1. The inviolability of the territory of a neu- 
tral state is incompatible with the use of this territory by a 
belligerent in aid of any of the objects contemplated by article 3. 

Here, likewise, there can be no conflict between the provisions 
of article 3 and those contained in article 8 below. The first of 
these articles contemplates the installation by belligerent parties 
of stations or apparatus on the territory of the neutral state or 
the use of stations or apparatus established by them in time of 
peace on this territory for purely military purposes without open- 
ing them to public service. Article 8, on the other hand, treats 
of public service utilities operated in a neutral country, either 
by the neutral state or by companies or individuals. (Reports 
of The Hague Peace Conferences, Carnegie Endowment, p. 539.) 

article 8 

A neutral state is not called upon to forbid or restrict the use 
on behalf of the belligerents of telegraph or telephone cables or of 
wireless telegraphy apparatus belonging to it or to companies or 
private individuals. 

Mention of this article has already been made in the commen- 
tary on article 3. We are here dealing with cables or apparatus 
belonging either to a neutral state or to a company or individuals, 
the operation of which, for the transmission of news, has the 



CONTROL OP RADIO 141 

character of a public service. There is no reason to compel the 
neutral state to restrict or prohibit the use by the belligerents 
of these means of communication. Were it otherwise, objections 
of a practical kind would be encountered, arising out of the con- 
siderable difficulties in exercising control, not to mention the con- 
fidential character of telegraphic correspondence and the rapidity 
necessary to this service. 

Through His Excellency Lord Reay, the British delegation re- 
quested that it be specified that " the liberty of a neutral state to 
transmit messages by means of its telegraph lines on land, its sub- 
marine cables, or its wireless apparatus does not imply that it has 
any right to use them or permit their use in order to render mani- 
fest assistance to one of the belligerents." 

The justice of the idea thus stated was so great as to receive 
the unanimous approval of the commission. 

ARTICLE 9 

Every measure of restriction or prohibition taken by the neutral 
state in regard to the matters referred to in articles 7 and 9 must 
be impartially applied by it to both belligerents. 

A neutral state must see to the same obligation being observed 
by companies or private individuals owning telegraph or telephone 
cables or wireless telegraphy apparatus. 

While declaring that a neutral state does not have to forbid 
or restrict either the commercial operations referred to in article 7, 
or the use of the cables or apparatus mentioned in article 8, the 
project does not, needless to say, detract from the right of the 
said neutral state to take, on its own account, such restrictive 
or prohibitive measures in these matters as it may deem neces- 
sary or useful. Its liberty in this respect remains entire, with 
but one condition, namely, that the measures so taken be applied 
impartially to the belligerents. (Ibid., p. 543.) 

Control of radio, 191 J. — As a result of diplomatic 
interchange of notes in regard to the use of radio, Presi- 
dent Wilson by Executive Order No. 2042 of September 
5, 1914, prohibited the stations within the jurisdiction of 
the United States " from transmitting or receiving for 
delivery messages of an unneutral nature and from in 
any way rendering to any one of the belligerents any 
unneutral service." Accordingly he authorized the tak- 
ing over by the Government of " one or more of the high- 
powered radio stations within the jurisdiction of the 



142 NUETRAL OBLIGATIONS 

United States and capable of trans-Atlantic communica- 
tion." The Secretary of the Navy was authorized to 
enforce this order. For this purpose detailed instruc- 
tions were drawn up in late September limiting commu- 
nication to shore stations in Europe and in the United 
Kingdom and to neutral messages which should be 
intelligible to the American officials. On November 
7, 1914, the Navy Department proposed to substitute the 
following : 

1. Radio messages containing information relating to the loca- 
tion or movements of armed forces of any belligerent nation, or 
relating to material or personnel of any belligerent nation, will 
be considered as unneutral in character and will not be handled 
by radio stations under the jurisdiction of the United States, 
except in the case of cipher messages to or from United States 
officials. 

2. No cipher or code messages are permitted to be transmitted 
to radio ship stations of belligerent nations by any radio shore 
station situated in the United States or its possessions or in terri- 
tory under the jurisdiction of the United States. Similar mes- 
sages received by such radio stations from ships of belligerent 
nations will not be forwarded or delivered to addressee. 

3. No communication of any character will be permitted be- 
tween any shore radio station under tbe jurisdiction of the 
United States and warships of belligerent nations, except calls of 
distress, messages which relate to the weather, dangers of navi- 
gation or similar hydrographic messages relating to safety at 
sea. 

4. No cipher or code radio message will be permitted to be 
sent from or received at any radio station in the United States 
via any foreign radio station of a belligerent nation, except from 
or at certain stations directly authorized by the Government to 
handle such messages. Press items in plain language relating 
to the war, with the authority cited in each item, will be per- 
mitted between such stations, provided no reference is made to 
movements or location of war or other vessels of belligerents. 

5. No radiogram will be permitted to be transmitted from any 
shore radio station situated in the United States or under its 
jurisdiction to any ship of a belligerent nation or any shore 
radio station that in any manner indicates the position or prob- 
able movements of ships of any belligerent nation. Similar radio- 
grams in the reverse direction will not be forwarded for delivery. 



NATIONAL EEGTJLATIONS 143 

6. Code or cipher messages are permitted between shore-radio 
stations entirely under the jurisdiction of the United States and 
between United States shore stations and United States or neutral 
merchant vessels, provided they are not destined to a belligerent 
subject and contain no information of any unneutral character, 
such as the location or movements of ships of any belligerent na- 
tions. In such messages no code or cipher addresses will be 
allowed and all messages must be signed with the sender's name. 
Radio-operating companies handling such messages must assure 
the Government censor as to the neutral character of such mes- 
sages. Such messages, both transmitted and received, must be 
submitted to the censor at such times as he may designate, which 
will be such that will not delay their transmission. 

7. In general, censoring officials will assure themselves beyond 
doubt that no message of any unneutral character is allowed to be 
handled. 

8. In order to insure that censors may, in all cases, be informed 
thoroughly and correctly as to the contents of radio messages 
coming under their censorship, they will demand, when necessary, 
that such messages be presented for their ruling in a language 
that is understandable to them. 

9. At such radio stations where the censor is not actually pres- 
ent at the station when messages are received by the radio station 
for forwarding, either by radio or other means, messages may 
pass, provided they are unmistakably of a neutral character, with- 
out being first referred to the censor, but the operating company 
will be held responsible for the compliance by their operators 
with these instructions. (1914, For. Rel., Sup., p. 680.) 

To these regulations the State Department had no 
objection. 

The United States advised Liberia to take action in 
accord with the American Executive order and thus 
maintain neutrality. 

Sir Edward Grey later communicated in a note the 
opinion of the British Government. 

I have had the honor of receiving your note of the 14th instant, 
submitting for the consideration of His Majesty's Government 
alternative proposals as to the transmission of telegraphic cor- 
respondence subject to censorship between the various belligerent 
governments and their respective embassies in the United States. 

I shall be glad if your excellency will inform your Govern- 
ment that of the two alternatives proposed, His Majesty's Gov- 
ernment would prefer the adoption of the first, namely, that the 



144 NUETRAL OBLIGATION'S 

wireless stations of Sayville and Tuckerton should be made avail- 
able for the transmission of the telegraphic correspondence be- 
tween the belligerent governments and their embassies subject to 
strict censorship by the United States authorities. 

His Majesty's Government does not regard it as practicable for 
German and Austro-Hungarian Government messages to be al- 
lowed to pass over British and French cables. 

His Majesty's Government trusts the United States Government 
will agree with them that it is an essential part of the duties 
of the censor to paraphrase all messages of belligerent govern- 
ments and their embassies in order to prevent, if possible, any 
hidden meaning being conveyed ; this process, besides being fol- 
lowed in the case of messages sent in plain language, should 
also be applied to the text of all messages intended for transla- 
tion into code or cipher before being dispatched. His Majesty's 
Government would also urge that the working of all wireless 
stations should be taken out of the hands of nationals of 
belligerent nations. 

It is presumed that the adoption of the first alternative sub- 
mitted by the United States Government would not entail the 
prohibition of the use of cable communication in preference to 
wireless for the telegraphic correspondence between Department 
of State and His Majesty's Embassy. Such correspondence would, 
of course, be subject to censorship to the same extent and as the 
correspondence of belligerent governments conducted through wire- 
less stations. (Ibid., 677.) 

Attitude of United States on radio. — The radio stations 
at Sayville, Long Island, and at Tuckerton, N. J., were 
in the early days of the World War able to communicate 
with Berlin and with German vessels of war at sea. 
Such use was protested by the British and on August 5, 
1914, the following Executive order was issued : 

Whereas proclamations having been issued by me declaring the 
neutrality of the United States of America in the wars now exist- 
ing between various European nations ; and 

Whereas it is desirable to take precautions to insure the en- 
forcement of said proclamations in so far as the use of radio 
communication is concerned ; 

It is now ordered, by virtue of authority vested in me to estab- 
lish regulations on the subject, that all radio stations within 
the jurisdiction of the United States of America are hereby pro- 
hibited from transmitting, or receiving for delivery, messages 
of an unneutral nature, and from in any way rendering to any 



AMERICAN CONTROL 145 

one of the belligerents any unneutral service during the continu- 
ance of hostilities. 

The enforcement of this order is hereby delegated to the Secre- 
tary of the Navy who is authorized and directed to take such 
action in the premises as to him may appear necessary. 
This order to take effect from and after this date. 

Woodrow Wilson. 
The White House, 

August 5, 1914. 

The Secretary of the Navy in a circular telegram of 
August 8, 1914, instructed naval officers in regard to 
carrying out the Executive order. 

No cipher or code messages permitted to be handled with radio 
ship or shore stations of belligerent nations by any government 
or commercial radio station under jurisdiction of United States 
nor permitted to be sent from any radio station in United States 
via foreign radio stations if destined to belligerent. Radio mes- 
sages containing information relative to operations, material, or 
personnel of armed forces of any belligerent nation will be con- 
sidered unneutral in character and will not be handled except 
in case of cipher messages to or from United States officials. In 
general censoring, official will assure himself beyond doubt that no 
message of unneutral character is handled. Censors will demand, 
if necessary, that messages be presented for their ruling in a 
language that is understandable to them. In case of doubt as to 
character of message it should be stopped and contents with full 
explanation of details forwarded to department (operations) by 
land line for instructions as to proper procedure. 

Daniels. 

(Ibid. 675.) 

As the submarine cables were in control of the enemies 
of Germany, the Secretary of State tried to devise a plan 
which should put communications of both belligerents 
on same footing and suggested to the belligerents the 
following alternatives : 

( 1 ) All 'the belligerents may send and receive wireless messages 
in code and cipher via Sayville and Tuckerton. The American 
censors at those stations receive the codes and ciphers used, in 
order to be able to see that the neutrality of the United States 
is not violated. Ciphers and codes to remain known only to the 
censors and the United States Government, also the contents of 
the messages sent ; or 



146 NTJETKAL OBLIGATIONS 

(2) Germany may use the English or French cables. The 
telegrams of all the belligerents submitted to censure as stated 
above. (Ibid., p. 670.) 

The French and British communications to the Secre- 
tary of State on this suggestion follow : 

French Embassy, 
Manchester, Mass., August 12, 191J h 

(Received 5.30 p. m.) 

I am informed that the Federal Government is contemplating 
steps to suppress the supposed differential treatment now accorded 
by the United States Government to wireless communications and 
cable messages. If my information be correct, I beg your excel- 
lency to consider the radically different nature of these two sorts 
of communication. What my Government objected to from the 
start was the direct communication with the German men-of-war 
by which they would have been warned of the movements of the 
French merchantmen and men-of-war and which constituted a 
violation of neutrality. It is only because of the impossibility to 
ascertain whether messages addressed to Germany would not 
reach German men-of-war that my Government protested against 
the indiscriminate use of the Tuckerton and Sayville wireless sta- 
tions. All belligerents are in that respect on an equal footing 
and this embassy is unable to let French men-of-war know of the 
movements of hostile vessels. The situation is different with 
cable communications, as a message forwarded that way can only 
reach a well-defined point. It can not be sent to any man-of-war, 
thus making the United States directly participant to a nonneutral 
act. The discrimination against Germany now supposed to exist 
in the United States' attitude is only apparent. It is the result 
of a legitimate act of war, that is, the cutting of German cables 
by a hostile force. It is in the order of things that the belligerent 
who has not been able to protect himself on that point should 
bear the consequences of it and it can not be the duty of a neutral 
power to reestablish between the belligerents a balance that has 
been destroyed by a legitimate act of war. 

Clausse. 

Beitish Embassy, 
Washington, August 14, 1914. 

Sir: I have the honor to recapitulate briefly the various points 
advanced by me in the course of conversations which I have had 
during the past few days with you and the Counsellor of the 
Department of State and in which I supported the contention of 
His Majesty's Government that the use of the wireless stations at 



GOVERNMENT RADIO 147 

Sayville and Tuckerton for messages of an unneutral nature 
should not be reestablished. 

1. The two wireless stations in question are under the direct 
control of the German Government and messages intercepted 
before the censorship was established indubitably show that they 
were in constant communication with German warships. 

2. Information conveyed by wireless differs vastly from that 
conveyed by cable. A wireless message, from the very moment 
it is dispatched, is spread in countless directions and is conveyed 
to any number of ships over a wide area. A cable message can 
only be delivered at one well-known point. That point of des- 
tination is a tangible one and the enemy are at perfect liberty 
to attack it and cut off communications. 

3. It would appear that the German Embassy contends that it 
is cut off entirely from communication with its Government. His 
Majesty's Embassy understands, however, that there are still 
cable routes open to them, via Italy, for instance. But even if 
this were not the case, the cutting of German cables is a per- 
fectly legitimate act of war, which the German Embassy can not 
expect it to be the duty of a neutral to redress. 

4. The further contention of the German Embassy that it is 
being discriminated against and that a cable message is on the 
same footing as a wireless message is incorrect. A cable message 
can not reach a warship. Any information which might be con- 
veyed as to the movement of ships by cable takes a considerable 
number of hours to reach its destination. When information 
is ultimately sent to the ships, this information reaches them 
from the territory of the belligerent (by means of relays from 
Europe, which again take time — a matter of vital importance) 
and not direct from the territory of a neutral, A wireless mes- 
sage, on the other hand, sent from the Sayville or the Tuckerton 
stations is not only direct but immediate information conveyed 
to ships, merchantmen, and warships! 

5. In short, the two German wireless stations above men- 
tioned are in a position to impart direct and immediate informa- 
tion to the German fleet, to the great danger of British shipping, 
and render United States territory a base for direct military 
operations against their enemies. 

I have, etc., 

COLVILLE BaECLAY. 

(Ibid., pp. 671-672.) 

Use of Government radio. — During the World War, 
1914r-1918, requests of private persons and of officials 
were received for the use of radio which was under Gov- 



148 2STUETKAL OBLIGATIONS 

ernment control. Even when censorship was maintained 
it was not always easily possible to determine the correct 
course of action, but communication by neutral govern- 
ment radio with belligerent ships was usually prohibited. 
A case arising at San Juan was a subject of diplomatic 
correspondence in a note from the Secretary of State to 
the French ambassador. 

Washington, December 29, 1915. 

My Dear Mb. Ambassador: I have just received a report from 
the Navy Department stating that the United States naval radio 
station at San Juan was requested on December 7 by the French 
consular officer at that port to transmit a message to the French 
cruiser Descartes patrolling outside the port of San Juan. Upon 
the transmittal of the message being properly refused, the tug 
Berwin left the port and steamed out to the cruiser, near whicn 
she remained until after dark. The officer surmises that the 
French consul took this means of communicating his message to 
the French cruiser. 

I am calling this matter to your attention informally in order 
to avoid, if possible, the necessity of bringing the matter to the 
attention of your Government in a formal manner for, as it is 
generally known, the Government has during the present war 
taken the attitude that belligerent cruisers may not use American 
coasts as sources of information to guide them in their belligerant 
operations. Such a practice would obviously transform American 
shores into bases of naval operations. If the facts turn out to be 
as I have described them, I would appreciate it if you could find it 
possible to have instructions issued to the commanders of French 
cruisers to desist from this method of obtaining information. 

In this relation I desire to call your attention to a report 
which has been received from American authorities at San Juan 
that the same French cruiser has, since it arrived off the Porto 
mean coasts, been very active in stopping all vessels leaving and 
approaching San Juan within the sight of the port, and on several 
occasions approaching well within the 3-mile limit, presumably 
for the purpose of observation. This practice, which has received 
the appellation of " hovering," has, as you may recall, been always 
regarded by this Government as inconsistent with the treatment 
to be expected from the naval vessels of a friendly power in time 
of war and as a vexatious menace to the freedom of American 
commerce. On account of the cordial relations existing between 
our Governments, I am sure that as a result of calling this mat- 
ter to your attention, instructions will be issued to the French 



USE OF CABLES 149 

ships to desist from a practice which is creating such a bad 
impression in Porto Rico and New York. 

I am, etc., 

Robert Lansing. 

(1915, For. Rel. Sup., pp. 881, 882.) 

SOLUTION 

(b) (2) The protest of state X against the toleration 
by state E of such use of radio by the commanding officer 
of the King is valid. 

(b) (3) Belligerent use of cables. 

Cable censorship. — Early in the World War the use 
of cables received attention from belligerents and from 
neutrals. In many businesses technical words were regu- 
larly used in time of peace in a sense that would not be 
clear to a person not familiar with the special business. 
An early telegram to the Secretary of State asks in 
regard to the use of the French cable between New York 
and Porto Rico : 

Houston, Tex., August 5, 19 H. 

Telegraph companies refuse to handle code messages for Porto 
Rico advising French cable New York to Porto Rico regulations 
demand plain language and full address. Must these revisions be 
complied with on messages from one part of United States to 
another? We, of course, considering Porto Rico United States 
territory and business in a sense interstate. 

Kirby Lumber Company. 

(1914 For Rel. Sup., p. 503.) 

The reply was: 

Department of State, 

Washington, August 7, 191J/. 

Subject your telegram receiving attention to end that ordinary 

code messages between United States and Porto Rico may not be 

refused. Great number of questions suddenly arising out of 

European war require time for adjustment. You will be advised. 

W. J. Bryan. 
• (Ibid.) 

Subsequently, September 1, 1914, advice was given that 
code messages would be transmitted. 



150 NUETRAL OBLIGATIONS 

The cable companies brought to the attention of offi- 
cials of different governments that with the increased 
demand upon their lines for service the requirements 
imposed by censorship and other restrictions made use 
of the lines to maximum capacity difficult. The Western 
Union estimated that the requirement of full addresses 
and signatures might cut down the number of messages 
which could be transmitted by 50 per cent while doubling 
the cost to the public. The Department of State on 
September 26, 1914, telegraphed to the American ambas- 
sador in Great Britain to the following effect : 

The department has received a great many protests from com- 
mercial houses and boards of trade and transportation throughout 
the United States in regard to the suppression by British censors 
of cable communications to and from neutral countries. This 
considerably interferes with legitimate foreign commerce between 
the United States and neutral countries. You may present the 
matter to the British Foreign Office with the suggestion that the 
department deems it very desirable to discontinue suppressing 
harmless commercial cables. Another great hardship has been 
that when suppressions have been made the senders of cables 
have not been informed of nondelivery. This should also be 
remedied. The department is awaiting an early reply. (1914, 
For. ReL, Sup., p. 500.) 

While the British Government on October 13 informed 
the American ambassador that instructions had been 
given to discontinue " the suppression of commercial tele- 
grams between the United States and neutral countries," 
the censor might still pass on the bona fides of the com- 
munciation and was not under obligation to notify " the 
sender of nondelivery of stopped telegrams." Other 
states protested against the censorship, both at London 
and Paris. In a telegram of November 25, 1914, the 
American ambassador in Great Britain stated — 

Unless some understanding has been reached of which I have 
not been advised, British Government as a war measure has the 
[power] to suppress what messages it chooses that come over 
cables here ; but criticism from many quarters is becoming 
so insistent that I hope some relaxing of rules will come. I am 



NATIONAL INSTKUCTIONS 151 

convinced that no commercial considerations play any part in their 
suppression but only the autocratic methods of the "War Depart- 
ment. (Ibid., p. 518.) 

An understanding mitigating to some extent the rigors 
of the British censorship was reached on December 18, 
1914. 

Submarine cables. — Toward the end of the nineteenth 
century cable policies were in process of development in 
the states having possessions in different parts of the 
world. Easy communication was of great importance 
both in time of peace and in time of war. While the 
introduction of radio made cable communication rela- 
tively less important, the cables still served many pur- 
poses. Cables were regarded as of sufficient importance 
to receive much attention during the World War. Cables 
were lifted, diverted, and sometimes cut. Part VIII, 
Annex VII, of the treaty of Versailles deals with the 
disposition of more than 20,000 miles of submarine cables. 

The early doctrine had inclined toward the exemption 
of cables because cables were of international utility. 
Gradually the necessity of censorship was recognized. 
Even with censorship, cables may serve as valuable means 
of keeping open communication upon matters not con- 
cerned directly with the war as in directing pre-war 
commerce. 

The instructions for the Navy of the United States, 
June, 1917, in regard to the treatment of submarine cables 
were as follows : 

Unless under satisfactory censorship or otherwise exempt, the 
following rules are established with regard to the treatment of 
submarine telegraph cables in time of war, irrespective of their 
ownership. 

(a) Submarine telegraph cables between points in territory 
belonging to or occupied by the enemy or between such territory 
and territory of the United States are subject to such treatment 
as the necessities of war may require. 

(&) Submarine telegraph cables between points in territory 
belonging to or occupied by the enemy and neutral territory may 
be interrupted within the territorial jurisdiction of the enemy or 



152 NUETRAL OBLIGATION'S 

at any point outside of neutral jurisdiction if the necessities of 
war require. 

(c) Submarine cables connecting an occupied territory with 
a neutral territory shall not be seized or destroyed, except in 
the case of absolute necessity. 

They must likewise be restored and compensation shall be 
fixed when peace is made. 

(d) Submarine telegraph cables between two neutral territories 
shall be held inviolable and free from interruption. (Instructions 
for the Navy of the United States Governing Maritime Warfare, 
June, 1917, p. 20. ) 

Prior discussion. — In previous conferences at the 
Naval War College, as in 1904 and 1907, certain aspects 
of the use of submarine cables have received considera- 
tion. The regulations prescribed by belligerents during 
the World War were often detailed and sometimes said 
to be arbitrary. The United States regulations after 
entering the war in 1917 were very comprehensive in 
their restrictions. (1918 N. W. C, Int. Law Documents, 
pp. 172-192'.) The use of submarine cables in neutral 
ports was usually subject to censorship and the neutral 
state should assume such degree of control as would 
assure maintenance of neutrality. 

SOLUTION 

(b) (3) The protest of state X against the toleration 
by state E of such use of the radio by the commanding 
officer of the Prince is valid. 

The protest against the use of the submarine cable is 
not valid though censorship may be requested. 



INDEX 



Aerial navigation convention, 1919 25 

Aircraft, in Panama Canal Zone 27 

regulation of 21,26 

Aircraft carriers 3 

Alabama, case of 16 

Alaska, f ort fication of 96 

Aleutian Islands, fortification of _ 96 

Algeciras conference 32 

Argentine Republic, use of radio in jurisdictional waters 6 

Arms: 

and muntions, export or transit of 132 

traffic in, in mandated area 31, 34, 50, 75 

Australia : 

and mandates 42, 80 

and Nauru 46 

and New Guinea 49 

Backward areas, control of 29 

Balance of power 36 

Balfour, Mr. : 

on former German colonies 39 

on proposed submarine treaty 96 

Barbarossa, The, case of 127 

Base of operations 128 

German doctrine on 135 

hostile 108 

naval 5, 10 

Bay, historic 24 

Belgium, and mandates 61, 84 

Berlin act, 1885 31 

Berwind, The, case of 131 

Bonin Islands, Japanese possession 102 

Briggs v. Light Boats, case of 117 

British Empire, and mandates 42, 46, 63 

Brussels acts, 1890 31 

9855—31 11 153 



154 INDEX 

Page 

Cables, British censorship of 151 

cutting of 10 

neutral 149 

submarine, United States instructions on use of 10, 145, 151 

telephone and telegraph 4, 140 

Yap-Guam 77 

Cable messages, control of 10', 146 

Cable station, international, island of Yap for 70 

Cameroons, B mandate 67, 89 

Canals : 

Panama 21 

Suez, free navigation of 22 

Cargo, suspected 128, 135 

Cartegena, control of radio station at 8 

Central Africa, mandates for 60 

Chile, rules on use of radio in territorial waters of 7 

Clearance, of merchant vessels for belligerent warships 127, 

133, 135 

Clemenceau, M., on native troops 87 

Coal, suppling to war vessels at sea 127,130,138 

Code messages 142, 149 

Codification, law on government-owned ships 119 

Columbia, use of radio in waters of 8 

Colonies 30 

Commerce and public vessels 115 

Commission of Jurists, 1923 10', 21 

Comte de Smet de Naeyer, The 117 

Condominum 33 

Conversion of merchant vessels 4, 14, 19 

Contraband 110, 130 

Cuba, status of 32 

Cyprus, island of 92 

Declaration of London, 1909 118 

Declaration of Paris, 1856 17 

Dependent areas, control of 29 

*' Due diligence," use by neutral power 13, 16 

Egypt, status of 91 

Enemy persons, carriage of 109 

Exchange v. McFadden, The 115 

Family of Nations, collective obligation of 29 

Farn, The '. 136 

Fleet auxiliary 27, 128 

Fonseca, Gulf of, status of 24 

Foodstuffs, as contraband 110 



INDEX 155 

Page 
Forced labor 50, 52, 75 

Formosa, island of 93, 102 

Fortifications 3 

in mandated territory 34, 48, 60, 85, 100 

in Pacific Ocean . 95 

France, and mandates 47, 60 

communication on submarine cables 146 

memorandum on submarines 122 

troops in mandated territory 87 

Fuel, (See Coal.) 

Geier, The - 130 

German UC 8, The 123 

Germany : 

attitude on neutrality 133 

base of operations, doctrine on 335 

debts of 43 

disposal of dependencies of— 33 

former Pacific possessions of 28, 33, 39, 42, 49, 51, 74 

position on use of neutral waters 124 

position on wireless communications ._„ 147 

property rights of, under article 257 43 

supplying of war vessels at sea 134 

Gold Coast, administration union in 67 

Great Britain : 

communication to Dominions on mandatory powers 86 

and Nauru 46 

cable communications, use of 146, 149 

claims to former German islands 33 

insular possessions of 102 

" open door " policy in Nauru, question of 60 

prize court in Egypt 91 

radio, control of 9, 144, 146 

submarines, memorandum on : 122 

Guatemala, on wireless telegraphy 8 

Gutenfels, The 

Hague Convention, V 4, 140 

Hague Convention, XIII 4, 5, 20, 124, 133 

Hawaiian Islands 95 

Helpless peoples, tutelage of 38 

Hospital ship 24 

Hymans, M., on mandatory power 86 

Immunity of state-owned vessels 114 

Innocent passage 112 

Institute of International Law, on condition of less ad- 
vanced peoples 30 



156 INDEX 

Page 

Insular dominions, possessions, and territories 101 

International Maritime Committee 120 

International Regime of Maritime Ports, Convention on 121 

Ionian Islands 30 

Iraq, termination of mandate for 54 

Italy, memorandum on submarines 122 

Jacobus Christian v. Rex 65 

Jaluit, Japanese possession 81 

Japan : 

attitude toward C mandates 58 

claims to former German islands 33 

fortifications in the Pacific 95 

insular possessions of 102 

island of Yap, and 71,98 

mandates, and 42,49,52,68,81,85 

submarines, memorandum on - 122 

United States on mandates 68, 74 

Johnson v. Mcintosh 29 

Keith, A. B., on New Guinea 58 

Kellogg-Briand pact 28, 103 

Kurile Islands 96, 102 

Lake Monroe, The .__ 117 

League of Nations : 

and former German possessions 44 

mandatory, principal powers, and 66 

memorandum of secretary general on mandates 41 

report of mandates committee to 46 

League of Nations committee of exports on codification 118 

League of Nations Council, mandates and 42, 49, 51, 70, 75, 88 

League of Nations Covenant: 

article 22 30, 34, 37, 49, 52, 57, 61 

United States and 42, 73, 103 

Lebanon, French mandate 47 

Liberia, and the United States 32 

Lindley, M. F., on League of Nations mandates 54 

Lloyd George, David 35,40.87 

Locarno pact 103 

Locksun, The 130 

Loochoo Islands, Japanese possession 102 

Lugard, Sir F., on mandatory power 82 

Mandate system : 

adoption of 37 

originators of 56 



INDEX 



157 



Mandates : Page 

administrative union 60, 67 

allocation of 39, 42 

basis for valid 44 

Belgan 61, 63, 84 

class A 44, 54, 57 

class B 55, 57, 67, 72, 86 

class C 42, 48, 55, 63, 72, 86, 100 

condominium 33 

defense of 34,64,100 

demilitarization of 91 

double 32 

early idea of 29 

for Central Africa 60 

for Pacific islands 49, 68 

for Southwest Africa 82 

French 60 

troops in 87 

general plan for 57 

in Roman law 29 

island of Yap, allocation of 69, 72 

Japanese 81 

later ideas of 29 

mandatory and 82 

military bases in 34, 51, 60, 75, 85, 100 

military organization in : 85, 100 

military training of natives in . 34, 48, 87 

modifications of terms of 47, 75 

nationality of inhabitants 56, 63 

neutralization of 47, 91 

purpose of 55 

right of petition of inhabitants of 87 

source of authority of 55, 59 

sovereignty 55 

status of 45,57,61,64,94 

termination of 44, 54, 57 

terms of 48, 54, 66 

trade in 34,58,72 

transfer of ; 45 (32 

United States and 67,80,93 

war and 45,99 

Mandatory : 

administration of mandate as intergral part of terri- 
tory of 35, 48) 56> 8 3 5 85 



158 INDEX 

Mandatory — Continued. Page 

League of Nations, principal allied and associated 

powers, and 66 

nationality, acquisition of 56 

sovereignty of 45,63,86 

troops of 47 

powers of 43, 46, 50, 75, 85 

reports of 35, 80, 85 

Maritime inspection zone 25 

Mazatlan, The 1 127 

Merchant vessels : 

armed 8, 17 

clearance of 127,133,135 

conversion of 4, 14, 19 

British attitude on ^_ 14 

United States memorandum on 13 

publicly owned — 

immunity of 114 

status of 118 

stiffening of decks of 3, 19 

use of radio in neutral ports on 126 

Military bases, in mandates 34, 51, 60, 75, 85, 100 

Military forces, transit of 109 

Miller, David Hunter, on troops in mandates 87 

Missionaries 31, 51, 76, 99 

Morocco 32 

Munitions 109, 130 

Nationality, in mandated territory 56, 63, 65 

Native forces 34, 48, 75, 87, 100 

Native inhabitants : 

diplomatic protection of 44 

status of, in mandates 65 

Naturalization 65 

Nauru, island of 42, 46,49, 60 

Naval bases 3 

in mandates 34, 50, 60, 75, 94, 100 

in neutral territory 129 

Naval garrison 81 

Netherlands, The, on use of neutral territory 108, 124 

Neutral obligations 106 

Neutral ports : 

armed merchant vessels in 18 

as base of naval operations 135 

Hague convention XIII on use of 133 



INDEX 159 

Neutral ports — Continued. Page 

prizes in 91, 126 

repairs on war vessels in 20 

supplying war vessels at sea from 126, 128 

Neutral rights, American states and 108 

Neutral states : 

cable communications with 150 

radio in territory of 1- 11 

Neutral waters : 

fitting out of vessels in 12 

prize, entrance of 123 

submarines, entrance of 121 

United States resolution on 135 

Neutrality 1, 5, 93, 135 

belligerent aircraft, and 22 

belligerent use of cables 119 

Kellogg-Br'and pact and 103 

mandates and 48,90 

Norwegian rules on 6 

United States regulations 15 

violation of 110 

Neutrality proclamations 23, 107 

British 13 

Netherlands 308 

Spain 108 

United States 13 

Neutralization : 

of mandated areas 47 

of Panama Canal 22 

New Guinea 49. 58 

New Zealand 42, 80 

and Nauru 46 

and "Western Samoa 49. 59 

Nigeria, incorporated with British mandate 67 

Norway, neutrality regulations of 6 

Occupation, military 90. 92, 94 

" Open door " principle 30, 33, 58, 60, 72 

Orts, M., on mandatory system 84 

Pacific islands : 

mandates for 42, 48. 68, 70, 74, 81 

status of 28, 105 

Palua, mandated area 81 

Panama Canal, treaties on 22 

Panama Canal Zone 96 

belligerent aircraft in 27 



160 INDEX 

Page 

Papua 58 

Paris, treaty of 32 

Permanent Court of International Justice 51, 53, 67, 76 

Permanent Mandates Commission 63,67 

military organization in mandates 88, 100 

on German public property rights 43 

sixth report of ! 46 

Pesaro, The 114 

Pescadores, Japanese possession 102 

Philippine Islands 30, 95 

Porto Alexandre, The 115 

Porto Rico 149 

Portugal, memorandum on belligerent submarines 122 

Principle allied and associated powers territory renounced 

in favor of 41,45,49,52,59.66 

Privateering 17 

Prize courts 91 

Prizes, in neutral waters 91, 123, 126 

Property rights, American : 

in Japanese mandates 77, 99 

German 43 

Protectorates 30,43 

Radio : 

Argentine Republic on 6 

British Government on control of 144 

Chile on 7 

Colombia on 8 

control of 3, 140 

German contention on use of 147 

Guatamela on 8 

in neutral ports 126 

Norway on 6 

United States on 5, 144 

Uruguay on 8 

Radio apparatus, dismantling 7 

Radio messages : 

censorship of 10 

United States instructions 142 

Radio stations : 

Commiss'on of jurists on 11 

on island of Yap 77 

Radiotelegraphic convention, 1912 11 

Rappard, W. E., on mandatory system 61, 84 



INDEX 161 

Recruitment : Page 

in mandates 87 

in neutral territory 16 

Reservists, trans!t of — 109, 112 

Root, Elihu, on proposed submarine treaty 96 

Russia, peace proposal of 35 

Saint Germain-en-Laye convention 31 

Saipan, mandated area : 81 

Salvage 115 

Self defense, right of 103 

Shantung r . 33 

Slave trade 31, 34,-50, 75 

Slavery, abolition of 30 

South Africa, Union of, and mandate 49, 57, 82 

Southwest Africa 49, 56, 65, 82- 

Smuts, General, on mandates 57, 82 

Sovereignty : 

double or ambiguous 92 

in mandates 45, 63, 83, 86 

over former German possessions 55 

Spain : 

neutrality proclamation of 108 

renunciation of Cuba 32 

Spheres of influence 30 

Spoils of war 37, 40, 45, 56 

Status quo, maintenance of 95, 102 

Submarines 17, 97, 113, 122 

Sudmark, The 91 

Supreme war council 39, 70 

Suzerainties 30 

Syria, French mandate 47 

Tender, naval 129, 137 

Territorial waters 6, 8, 25, 109, 124 

Territory neutral, passage of belligerent troops over 109 

Togoland 67,89 

Trade, in mandate 33, 58, 67, 72 

Transports, belligerent-- 23 

Treaties : 

Bryan-Chamorro 24 

commercial, United States and mandated islands 80 

four power 93 ; 100 

limitation of naval armament 3, 19, 28,96, 99 

Submarine qq 



162 INDEX 

Treaties — Continued. 

United States — Pagp 

and Germany 73 

and Great Britain, 1901 22 

and Japan 74,93,98 

and Panama 23 

Washington — ■ 

1871 16 

1921-22 74, 93, 97 

Troops : 

in mandates 87 

in- Panama Canal 22 

In Syria and Lebanon 47 

internment of belligerent 109 

passage of ]09 

Trust, sacred 34, 55, 86 

Trusteeship 29, 58, 84 

Tutelage 31, 55, 86 

Twenty-four-hour rule 23, 134 

United States : 

and contraband 110 

and Covenant of League of Nations 73 

and island of Yap - 70, 98 

and Kellogg-Briand pact ]03 

and mandates 46, 67, 79, 93, 99 

and naval bases in Pacific 95 

attitude toward tribes 31 

enforcement of neutrality 15 

fitting out and arming in territory of 12 

insular possessions 102 

laws on enemy reservists 112 

memorandum on supplying war vessels at sea 128 

nationals of, on island of Yap 77 

neutral waters, attitude on use of 128, 135 

radio, attitude on use of 144, 148 

relations to Cuba 32 

submarines, use of, in 123 

Unneutral service 6, 10, 129, 141, 144 

Uruguay 8 

Van Rees, M., on mandatory power 82 

Versailles, treaty of 39,42,46,55,66,97 

Vessels : 

auxiliary 17, 23, 27, 128 

bringing into port 91 

fitting out and arming in neutral territory 16 



INDEX 163 

Vessels — Continued. Page 

innocent passage of 113 

neutral — 

carriage of reservists 111 

publicly owned or controlled 119 

on scientific mission 118 

radio on . 128 

(See also Merchant vessels, Submarines, Transports, 
War vessels.) 

Von Hertling, Count 35 

Yap, island of 69,74,81,98 

War: 

and mandates 90 

Russo-Japanese 5 

supplies, in mandates areas 45 

War vessels 19, 113 

belligerent — 

in Panama Canal Zone 27 

in neutral waters 133 

communication with neutral territory 10 

definition of 23 

fitting out and arming 12, 20 

in Dutch waters 109 

repairs in neutral parts 20 

supplying of, at sea 126, 138 

Washington conference . 96, 101 

Western Samoa 28, 42, 49, 59 

Wilson, Woodrow: 

four principles for peace 36 

fourteen points 37 

on island of Yap 69 

Wireless. (See Radio.) 

o